The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. 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) the Agents shall not be subject to 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective 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 under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 an 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 any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Limited Brands Inc), Amendment and Restatement Agreement (Limited Brands Inc)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Facility Agent as its agent and authorizes such the Facility Agent, and each of the Lenders also hereby irrevocably appoints the Canadian Facility Agent as its sub-agent and authorizes the Canadian Facility Agent, to take such actions on its behalf and to exercise such powers as are delegated to such the Facility Agent and Canadian Facility Agent, respectively, by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any bank serving as an Agent hereunder shall have the same rights and powers in its capacity respective capacities as a Lender as any other Lender and may exercise the same as though it they were not an such Agent, and such bank banks and its their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it they were not an Agent under the Loan Documentshereunder. The Agents Any bank serving as an Agent hereunder shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents such Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents such Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documents, the Agents such Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company, any Borrower or any of its their Subsidiaries that is communicated to or obtained by the banks bank serving as Agents such Agent or any of their respective Affiliates in any capacity. No An Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each An Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company, a Borrower or a Lender, and the Agents such Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable such Agent. Each An Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents An 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. Each An Agent may consult with legal counsel (who may be counsel for the Company or 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 of the Agents An 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 of the Agents Such Agent and any such sub-agent agent, as applicable, may perform any and all of its their duties and exercise its their 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 each (i) the Facility Agent and any such sub-agent and (ii) the Canadian Facility 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 an Facility Agent and Canadian Facility Agent, respectively. Subject to the appointment and acceptance of a successor Facility Agent or successor Canadian Facility Agent, as the case may be, as provided in this paragraph, either an Agent may resign at any time by notifying the Lenders Lenders, the Company and the Borrowerother Agent. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrowerconsent of the Company (which consent shall not be unreasonably withheld, and shall not be required so long as any Event of Default set forth in clause (i) or (j) of Section 7.01 has occurred and is continuing) and the other Agent (which consent shall not be unreasonably withheld), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the such retiring Agent may, on behalf of the Lenders, appoint a successor Agent Agent, which shall be (i) a bank with an office in New York, New YorkLondon, or an Affiliate of any such bank, for the successor Facility Agent, and (ii) a bank with an office in Toronto, or an Affiliate of any such bank, for the successor Canadian Facility Agent. Upon the acceptance of its appointment as an Facility Agent or Canadian Facility Agent hereunder by a successor, as the case may be, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the such retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Company or any Borrower to a successor Agent shall be the same as those payable to its respective predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Agent, its respective 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 an Agent. 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Each party hereto agrees and acknowledges that the Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), do not have any duties or responsibilities in their capacities as suchLead Arrangers hereunder and shall not have, shall have no rightsor become subject to, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral liability hereunder in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementcapacities.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Yum Brands Inc)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms hereof and of the Loan other Credit Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the The bank or banks serving as an Agent the Agents hereunder shall have the same rights and powers in its their capacity as a Lender Lenders as any other Lender and may exercise the same as though it they were not an AgentAgents, and such bank or banks and its 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 it they were not an Agent under the Loan DocumentsAgents hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, foregoing (a) the Agents shall not be subject to 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 hereby that the applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured PartiesMajority Lenders, and (c) except as expressly set forth in the Loan Documentsherein, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks serving as Subsidiary. The Agents or any of their respective Affiliates in any capacity. No Agent shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Majority Lenders (or such other number or percentage of the Lenders Lenders, as shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Partiesmay be, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Agents by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV III or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent 58 The Agents 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 them to be genuine and to have been signed or sent by the proper Person. Each of the The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem with reasonable care, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each of the The Agents may perform any and all of its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such Agentthe Agents. Each of the The Agents and any such sub-agent may perform any and all of its their duties and exercise its their rights and powers through their respective Related PartiesAffiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties Affiliates of each Agent the Agents 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Majority Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation right to appoint a successor with the Borrower, to appoint a successor'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 (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent which shall be a bank or an Affiliate thereof, in each case with a net worth of at least $1,000,000,000 and an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successorhereunder. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the its 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 it while it was acting as an 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 any Loan Documentthis Agreement, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Notwithstanding any other provision contained herein, each Lender acknowledges that the Administrative Agent is not acting as an agent of the Borrower and Joint Bookrunners, that the Co-Syndication Agents and the Co-Documentation Agents (each as identified Borrower will not be responsible for acts or failures to act on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any part of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementAdministrative Agent.
Appears in 1 contract
Sources: Term Loan Agreement (Goodyear Tire & Rubber Co /Oh/)
The Agents. Each In order to expedite the transactions contemplated by this Agreement, CSFB is hereby appointed to act as Administrative Agent and Collateral Agent on behalf of the Lenders hereby irrevocably appoints each and the Issuing Bank (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as its agent the "Agents"). Each of the Lenders, each assignee of any such Lender and the Issuing Bank hereby irrevocably authorizes such Agent the Agents to take such actions on its behalf of such Lender or assignee or the Issuing Bank and to exercise such powers as are specifically delegated to such Agent the Agents by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In additionThe Administrative Agent is hereby expressly authorized by the Lenders and the Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Bank all payments of principal of and interest on the Loans, all payments in respect of L/C Disbursements and all other amounts due to the extent required under Lenders hereunder, and promptly to distribute to each Lender or the laws Issuing Bank its proper share of any jurisdiction, each payment so received; (b) to give notice on behalf of each of the Lenders hereby grants to the Collateral Borrower of any Event of Default specified in this Agreement of which the Administrative Agent any required powers has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of attorney to execute all notices, financial statements and enforce any Collateral Document governed other materials delivered by the laws of such jurisdiction on such Lender’s behalf. Each of the banks serving as an Agent hereunder shall have the same rights Company and powers in its capacity as a Lender as PHI or any other Lender and may exercise Loan Party pursuant to this Agreement or the same other Loan Documents as though it were not an received by 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 an Agent under the Loan Documents. 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) the Agents shall not be subject are hereby expressly authorized to release any fiduciary or Guarantor from its obligations hereunder and under the 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 and release the applicable Agent is required to exercise Security Interest 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 8.02) orany Collateral, in the case event that all the capital stock of the Collateral DocumentsGuarantor, or such Collateral, shall be sold, transferred or otherwise disposed of to a person that is not an Affiliate of the Required Secured PartiesBorrower in a transaction permitted by Section 6.05 hereof, and to execute any and all documents (cincluding releases) except with respect to the Collateral and the rights of the Secured Parties with respect thereto, in each case as expressly set forth contemplated by and in accordance with the provisions of this Agreement and the other Loan Documents, . Neither the Agents 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 banks serving as Agents or nor any of their respective Affiliates in any capacity. No Agent directors, officers, employees or agents shall be liable as such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its his own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower , or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with herewith, or be required to ascertain or to make any Loan Document, (iii) inquiry concerning the performance or observance by the Borrower or any other Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, (iv) the genuineness, validity, enforceability, enforceability or effectiveness or genuineness of any Loan Document this Agreement or any other agreementLoan Documents, instrument instruments or document agreements. The Agents shall in all cases be fully protected in acting, or (v) refraining from acting, in accordance with written instructions signed by the satisfaction of Required Lenders and, except as otherwise specifically provided herein, such instructions and any condition set forth in Article IV action or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to inaction pursuant thereto shall be delivered to binding on all the applicable AgentLenders. Each Agent shall shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Neither the Agents nor any of their respective directors, officers, employees or agents shall have any responsibility to the Company or any other Loan Party on account of the failure of or delay in performance or breach by any Lender or the Issuing Bank of any of its obligations hereunder or to any Lender or the Issuing Bank on account of the failure of or delay in performance or breach by any other Lender or the Issuing Bank or the Company or any other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each of the Agents also may execute any and all duties hereunder by or through agents or employees and shall be enti tled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents 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 Lenders hereby acknowledge that no Agent shall be under 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 preceding paragraphs 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 an AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either any Agent may resign at any time by notifying the Lenders and the BorrowerBorrower in writing. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, right to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successorhereunder. After such the Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 10.05 shall continue in effect for the its 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 it while it was acting as 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 of the Subsidiaries or other Affiliate thereof as if it were not an Agent. Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share (based on the amount of its Loans and available commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Borrower and (b) to indemnify and hold harmless each Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by or asserted against it in its capacity as 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 Borrower or any other Loan Party; provided that no Lender shall be liable to an Agent or any such other indemnified person for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each Revolving Credit Lender agrees to reimburse each of the Issuing Bank and its directors, officers, employees and agents, in each case, to the same extent and subject to the same limitations as provided above for the 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. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase is hereby appointed to act as Administrative Agent and CMIL is hereby appointed to act as London Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints each of authorizes the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any 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 such Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company, any Borrower or any Subsidiary or other Affiliate thereof as if it were not an such Agent under the Loan Documentshereunder. 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) the Agents no Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents no Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties10.02), and (c) except as expressly set forth in the Loan Documents, the Agents no Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company, any Borrower or any of its Subsidiaries Subsidiary that is communicated to or obtained by the banks bank serving as Agents Agent or any of their respective 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 under the circumstances as provided in Section 8.0210.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own bad faith, gross negligence or willful wilful misconduct. Each No Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the a Borrower or a Lender, and the Agents no such Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 an 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 any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent them by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to The bank serving as the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Administrative Agent and Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Administrative Agent or Collateral 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 an the Administrative Agent under the Loan Documentsor Collateral 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) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents neither Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by that, under the terms of the Loan Documents that the applicable Documents, 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 circumstances, as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), 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 failure to disclose, any information relating to the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Administrative Agent and Collateral Agent or any of their respective its Affiliates in any capacity. No Neither 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each Neither Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents neither Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent The Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 an 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 any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Credit Agreement (Healthsouth Corp)
The Agents. Each of the Lenders and the Issuing Lender hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent JPMorgan Chase Bank, N.A. as its agent and authorizes such JPMorgan Chase Bank, N.A., in its capacity as Administrative Agent and Collateral Agent, (i) to sign and deliver the Collateral Documents and (ii) to take such actions on its behalf and to exercise such powers as are delegated to such the Agent by the terms of the Loan Financing Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks The bank serving as an the 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 the 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 an the Agent under the Loan Documentshereunder. The Agents Agent shall not have any duties or obligations except those expressly set forth in the Loan Financing Documents. Without limiting the generality of the foregoing, (a) the Agents Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents Agent 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 Financing Documents that the applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties10.02), and (c) except as expressly set forth in the Loan Financing Documents, the Agents Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Agent or any of their respective its Affiliates in any capacity. No The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.0210.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Agent by the Borrower or a Lender, and the Agents Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Financing Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Financing Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Financing Document or any other agreement, instrument or document or document, (v) the satisfaction of any condition set forth in Article IV 4 or elsewhere in any Loan Financing Document, other than to confirm receipt of items expressly required to be delivered to the applicable Agent, or (vi) the existence, genuineness or value of any of the Collateral or the validity, perfection, recordation, priority or enforceability of any Lien on any of the Collateral. Each The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents The 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. Each The Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents The 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 the Agent. Each of the Agents The Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each the 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either the Agent may resign at any time by notifying the Lenders Lenders, the Issuing Lender and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Lender, appoint a successor 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such the Agent’s resignation hereunder, the provisions of this Article and Section 8.03 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. To the extent required by any applicable laws, the Administrative Agent may withhold from any payment to any Lender or Issuing Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 2.16, each Lender and Issuing Lender shall indemnify and hold harmless the Administrative Agent against, and shall make payable in respect thereof within 10 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the IRS or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax from amounts paid to or for the account of such Lender or Issuing Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender or Issuing Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender or Issuing Lender by the Agent shall be conclusive absent manifest error. Each Lender and Issuing Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or Issuing Lender under this Agreement or any other Facility 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 or Issuing Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any Loan other Financing Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint BookrunnersNothing in any Financing Document shall impose on any of Citibank, the N.A., Barclays Bank PLC or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., in its capacity as Co-Syndication Agents and the Agent, or on any of General Electric Capital Corporation or ▇▇▇▇▇ Fargo Capital Finance, LLC, in its capacity as Co-Documentation Agents (each as identified Agent, or on the cover page any of this Agreement)Citigroup Global Markets Inc., Barclays Bank PLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., GE Capital Markets, Inc. and ▇▇▇▇▇ Fargo Capital Finance, LLC, in their capacities its capacity as sucha Second Amendment and Restatement Lead Arranger and Bookrunner, shall have no rights, powers, duties, liabilities, fiduciary relationships any duty or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementresponsibility whatsoever.
Appears in 1 contract
The Agents. Each of the Lenders and the Issuing Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent hereunder and under the other Loan Documents and authorizes such the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to such the Administrative Agent by the terms of the Loan Documentshereof or thereof, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks The Person serving as an Agent hereunder or under the other Loan Documents shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such bank Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. The Agents Neither Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Agents neither Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents neither Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth herein and in the other Loan Documents, the Agents neither Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks bank serving as Agents an Agent or any of their respective its Affiliates in any capacity. No Neither 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Neither Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this AgreementAgreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection with any Loan Documentherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein or therein, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either An Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successorsuccessor to such Agent. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent’s resignation shall nonetheless become effective and (1) the retiring Agent mayshall be discharged from its duties and obligations hereunder and (2) the Required Lenders shall perform the duties of such Agent (and all payments and communications provided to be made by, on behalf of to or through the Lenders, Administrative Agent shall instead be made by or to each Lender directly) until such time as the Required Lenders appoint a successor Agent which shall be a bank with an office agent as provided for above in New York, New York, or an Affiliate of any such bankthis paragraph. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, (or retired) Agent and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder (if not already discharged therefrom as provided above in this paragraph). The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 an Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the 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 AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender also acknowledges that it willshall, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Documentthis Agreement, any related agreement or any document furnished hereunder or thereunderthereunder and in deciding whether or to the extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. The Notwithstanding anything herein to the contrary, the Joint Lead Arrangers and the Joint Bookrunners, the Co-Syndication Agents Agent and the Co-Documentation Agents (each as identified named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in their capacity, if any, as Lenders and except, in the case of the Syndication Agent, as expressly set forth herein. The Administrative Agent is hereby authorized by the Lenders and the other Secured Parties to execute and deliver any documents necessary or appropriate to create and perfect the rights of pledge for the benefit of the Secured Parties including a right of pledge with respect to the entitlements to profits, the balance left after winding up and the voting rights of the Borrower as ultimate parent of any subsidiary of the Borrower 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 Borrower 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 Obligations, and any payment to the Secured Parties in satisfaction of the 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. The Lenders and the other Secured Parties acknowledge and agree for the purposes of taking and ensuring the continuing validity of German law governed pledges (Pfandrechte) with the creation of parallel debt obligations of the Borrower and its Subsidiaries as will be further described in a separate German law governed parallel debt undertaking. The Administrative Agent shall (i) hold such parallel debt undertaking as fiduciary agent (Treuhänder) and (ii) administer and hold as fiduciary agent (Treuhänder) any pledge created under a German law governed Security Document which is created in favor of any Secured Party or transferred to any Secured Party due to its accessory nature (Akzessorietät), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any each case in its own name and for the account of the other documents related heretoSecured Parties. Each Lender, on its own behalf and on behalf of its affiliated Secured Parties, hereby authorizes the Lenders hereby (a) agrees Administrative Agent to be bound by the provisions of the Collateral Documentsenter as its agent in its name and on its behalf into any German law governed Security Document, including those terms thereof applicable to the Collateral Agent accept as its agent in its name and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, on its behalf any pledge under such Security Document and to control remedies thereunderagree to and execute as agent in its name and on its behalf any amendments, supplements and (b) irrevocably authorizes the Collateral Agent other alterations to any such Security Document and to release any Lien on such Security Document and any Collateral pledge created under any such Security Document in accordance with the Collateral Documentsprovisions herein and/or the provisions in any such Security Document. Each In addition to, and without limiting, the foregoing, to the extent required under the laws of any jurisdiction other than the United States, each of the Lenders and each of the Issuing Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary 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 Lender’s behalf. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders (including the Swingline Lender and the Issuing Lenders), and the Loan Parties shall not have rights as a third party beneficiary of any of such Intercreditor Agreementprovisions. It is understood and agreed that the use of the term “agent” as used herein or in any other Loan Documents (or any similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
Appears in 1 contract
Sources: Credit Agreement (Teleflex Inc)
The Agents. Each of the Lenders and Issuing Banks hereby irrevocably appoints each of the entity named as Administrative Agent or London Agent in the heading of this Agreement and its successors to serve as Administrative Agent or London Agent, respectively, under the Collateral Agent as its agent Loan Documents, and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. 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) the Agents shall not be subject to 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 applicable Agent is Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as an Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.02) or9.02), provided that no Agent shall be required to take any action that, in the case of the Collateral Documentsits opinion, the Required Secured Partiescould expose such 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, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as an Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful misconductwilful misconduct (as determined by a final, non-appealable judgment of a court of competent jurisdiction). Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection with any Loan Documentherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the sufficiency validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Notwithstanding anything herein to the applicable Agentcontrary, the Agents shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof, any Exchange Rate or any US Dollar Equivalent. 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 9.03 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. Any Person serving as an 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 an 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 it were not an Agent hereunder and without any duty to account therefor to the Lenders or Issuing Banks. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of a resignation by the Collateral Administrative Agent, ) or the Required Secured PartiesAdministrative Agent (in the case of a resignation by the London Agent) shall have the right, in consultation with the Borrower, ’s approval (so long as no Event of Default has occurred and is continuing) to appoint a successor. If no successor Agent shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 an Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Agents either Agent, any Arranger 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 and Issuing Bank also acknowledges that it will, independently and without reliance upon the Agents either Agent, any Arranger or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunnersparties agree that none of the Arrangers, the Co-Syndication Agents and Agent or the Co-Documentation Agents (each as identified referred to on the cover page of this Agreement)Agreement shall, in their capacities its capacity as such, shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations responsibilities under any Loan Document this Agreement or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementLoan Document.
Appears in 1 contract
Sources: Credit Agreement (Broadridge Financial Solutions, Inc.)
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of (i) The Chase Manhattan Bank as Administrative Agent, and (ii) The Chase Manhattan Bank as Collateral Agent, (the Administrative Agent and the Collateral Agent Agent, for purposes of this Article being referred to individually as its agent an "Agent" and collectively as the "Agents"), and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of this Agreement or by the terms of any other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower any Credit Party or any Subsidiary or other Affiliate thereof as if it were not an Agent under Agent. None of the Loan Documents. The Agents shall not have any duties or obligations except those expressly set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents no Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documentsherein, the Agents no Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower any Credit Party or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents such Agent or any of their respective its Affiliates in any capacity; provided, however, that Agents shall give Lenders immediate written notice of any action taken or notice received or given by any of them pursuant to the Intercreditor Agreement. 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each No Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Borrowers or a Lender, and the Agents no Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this AgreementAgreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection with any Loan Documentherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document document. The Administrative Agent shall not be responsible for or (v) have any duty to ascertain or inquire into the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrowerany Credit Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 Agentit including, without limitation, its duties, rights and powers under any Loan Documents in respect of the Collateral or any portion thereof. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the foregoing, each Agent (including but not limited to the Administrative Agent) acting under or in respect of the Collateral, shall act for the ratable benefit of the Lenders and the Issuing Bank as appropriate hereunder (unless otherwise provided herein or in any other Loan Documents) and shall be entitled to the exculpations, privileges, indemnities and other protections provided for the benefit of the Agent herein or therein. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowerBorrowers. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerBorrowers, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documentsas such. The fees payable by the Borrower Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Borrowers and such successor. After such any Agent’s resignation hereunder's resignation, the provisions of this Article and Section 8.03 9.03 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 an 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, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Revolving Credit Facility (Drew Industries Incorporated)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to each such Agent Agent, respectively, by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. The Agents No Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents an Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents an Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documents, the Agents an Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries Subsidiary that is communicated to or obtained by the banks bank serving as Agents an Agent or any of their respective its Affiliates in any capacity. No An Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each An Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the a Borrower or a Lender, and the Agents an Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerBorrowers), 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 of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent subagent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of (i) each Agent and (ii) 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either an Agent may resign at any time by notifying the Lenders Lenders, the other Agents, the Issuing Banks and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the such retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or Toronto, Ontario, as applicable, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the such retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 an 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, None of the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships rights or obligations of any Agent under any Loan Document may be amended, supplemented or any otherwise modified without the prior written consent of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral such Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementLenders.
Appears in 1 contract
Sources: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent and authorizes such each Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto, and each Lender hereby authorizes the Agents to enter into the Loan Documents (other than this Agreement) on its behalf. In additionthe event that any Agent becomes a lender hereunder, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral such Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent under hereunder and may accept fees and other consideration from the Borrower for services in connection with the Loan DocumentsDocuments or otherwise without having to account for the same to the Lenders. The Agents Neither Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents neither Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents neither Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties11.02), and (c) except as expressly set forth in the Loan Documents, the Agents neither Agent shall not have any duty to disclose, and shall not nor be liable for the failure to disclose, any information relating to the Borrower or any of its the Subsidiaries that is communicated to or obtained by either of the banks serving as Agents or any of their respective Affiliates in any capacity. No capacit Neither Agent shall be liable for any action taken or not taken by it with the consent or at the request of the 54 of 69 Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.0211.02) or, in the case of the Collateral Documents, the Required Secured Parties, or otherwise in the absence of its own gross negligence or willful misconductmisconduct as determined in a final judgement by a court of competent jurisdiction. Each Neither Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents neither Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceabilityenforceabili ty, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or the validity, perfection, or priority of any Lien created by any of the Security Documents, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents Agent may perform any of and all of its duties and exercise its rights and powers by or through any one or more sub-agents or attorneys-in-fact appointed by such Agent. Each of the Agents Agent and any such sub-agent or attorney-in-fact may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent or attorney-in-fact and to the Related Parties of each such Agent and any such sub-agentagent or attorney-in-fact, and shall apply to their respective activities in connection with the syndication 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 in this paragraph, either Agent may resign at any time by notifying the Lenders and the BorrowerBorrower and either Agent may be removed at any time with or without cause by the Required Lenders. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 which that 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 an Agent 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 under the Loan Documentshe under. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such an Agent’s resignation hereunder's resignation, the provisions of this Article and Section 8.03 11.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and attorneys-in-fact 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 an Agent. 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 55 of 69 and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint BookrunnersExcept for action expressly required of either of the Agents by the Loan Documents, each Agent shall in all cases be fully justified in failing or refusing to act under the Co-Syndication Loan Documents unless it shall receive further assurances to its satisfaction from the Lenders of their indemnification obligations under Section 11.03(c) hereof in respect of such action. Without limiting the foregoing, neither of the Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rightsany liability or responsibility with respect to the sufficiency and satisfaction of the conditions precedent set forth in Sections 4.01 or 4.02 hereof and shall not be required to, powersand shall not, dutiestake any action to enforce any of its or the Lenders' rights under, liabilitiesnor waive or amend any provision of, fiduciary relationships or obligations under any Loan Document this Agreement or any of the other documents related hereto. Each Loan Documents or any collateral, nor give any notice or make any request or demand or filing thereunder, except in each instance as and to the extent instructed to do so by the Required Lenders, and neither of the Lenders hereby (a) agrees Agents shall have any liability for failure to be bound by take any action in the provisions absence of the Collateral Documentssuch instructions, including those terms thereof applicable provided that each Agent will promptly send to the Collateral Agent Lenders and the provisions thereof authorizing other Agent a copy of each notice, request or other document delivered to such Agent pursuant to the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, terms of this Agreement and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by other Loan Documents and will take no such actions contemplated by the Loan Documents as the Required Len rs may reasonably instruct, except that nothing herein or in any other Loan Document shall require any Agent to take any action that in the reasonable opinion of such Agent would be contrary to the provisions terms of this Agreement or applicable law or subject such Intercreditor AgreementAgent to personal liability.
Appears in 1 contract
Sources: Revolving Credit Agreement (Memc Electronic Materials Inc)
The Agents. (a) Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such the Administrative Agent or the Collateral Agent, as the case may be, by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In additionThe provisions of this Article are solely for the benefit of the Agents, the Lenders and the Issuing Banks, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions; provided that, solely to the extent required that the Borrower is expressly afforded notice, consultation or other rights thereunder, the Borrower may rely on Sections (f), (g) and (h) of this Article VIII. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Agents is not intended to connote any fiduciary or other implied (or express) obligations arising under the laws agency doctrine of any jurisdictionapplicable Law. Instead such term is used as a matter of market custom, each of and is intended to create or reflect only an administrative relationship between contracting parties.
(b) The bank serving as the Lenders hereby grants to Administrative Agent or the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Administrative Agent or the Collateral 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 an the Administrative Agent under or Collateral Agent hereunder and without any duty to account therefor to the Loan Documents. Lenders or to provide notice to or consent of the Lenders with respect thereto.
(c) The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents, and their duties shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents neither Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by that, under the terms of the Loan Documents that the applicable Documents, 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 circumstances, as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documents, the Agents neither Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks bank serving as Agents an Agent or any of their respective its Affiliates in any capacity. No Neither 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Neither Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents neither Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable such Agent. Neither Agent will 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.
(d) 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 or sent by the proper Person. Each of the Agents 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. Each The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been 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, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. For purposes of determining compliance with the conditions specified in Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consent to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objections.
(e) Each of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent the Agents 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 an Agent. Subject The Agents shall not be responsible for the negligence or misconduct of any sub-agents except to the appointment extent that a court of competent jurisdiction determines in a final and acceptance non appealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of a successor Agent as provided in this paragraph, either such sub-agents.
(i) The Administrative Agent may resign at any time by notifying give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no such successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignationresignation (such 30-day period, the “Lender Appointment Period”), then the retiring Administrative Agent may, may on behalf of the Lenders, appoint a successor Administrative Agent which meeting the qualifications set forth above. In addition and without any obligation on the part of the retiring Administrative Agent to appoint, on behalf of the Lenders, a successor Administrative Agent, the retiring Administrative Agent may at any time upon or after the end of the Lender Appointment Period notify the Borrower and the Lenders that no qualifying Person has accepted appointment as successor Administrative Agent and the effective date of such retiring Administrative Agent’s resignation. Upon the resignation effective date established in such notice and regardless of whether a successor Administrative Agent has been appointed and accepted such appointment, the retiring Administrative Agent’s resignation shall nonetheless become effective and (i) the retiring Administrative Agent shall be discharged from its duties and obligations as Administrative Agent hereunder and under the other Loan Documents and (ii) 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 a bank successor Administrative Agent as provided for above in this paragraph. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with an office all of the rights, powers, privileges and duties as Administrative Agent of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations as Administrative Agent hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in New Yorkthis paragraph). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, New Yorkthe 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 the retiring Administrative Agent was acting as Administrative Agent.
(ii) Any resignation pursuant to this Section by a Person acting as Administrative Agent shall, unless such Person shall notify the Borrower and the Lender Parties otherwise, also act to relieve such Person and its Affiliates of any obligation to advance or issue new, or extend existing, Swingline Loans or, unless there shall then be no other Issuing Bank, Letters of Credit where such advance, issuance or extension is to occur on or after the effective date of such resignation. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (ii) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, (iii) the successor Swingline Lender shall enter into an Affiliate Assignment and Assumption and acquire from the retiring Swingline Lender each outstanding Swingline Loan of such retiring Swingline Lender for a purchase price equal to par plus accrued interest and (iv) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit.
(g) 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 Administrative Agent, the Lenders, the Issuing Banks and the Borrower. Upon any such bankresignation, the Administrative Agent shall have the right, with, unless an Event of Default shall have occurred and be continuing, the consent of the Borrower (such consent not to be unreasonably withheld or delayed), and otherwise in consultation with the Borrower, to appoint a successor. Upon the acceptance of its appointment as an 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 under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successorhereunder. After such the Collateral Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Collateral 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 an Collateral Agent.
(h) Anything herein to the contrary notwithstanding, if the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders (determined after giving effect to Section 9.02) may by notice to the Borrower and such Person remove such Person as Administrative Agent and, in consultation with the Borrower, 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 Required Lenders (regardless of whether a replacement Administrative Agent has been appointed).
(i) 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners.
(j) None of the syndication agents, co-documentation agents, the Co-Syndication Agents senior managing agents, the managing agents or the lead arrangers and the Co-Documentation Agents (each as identified bookrunners named on the cover page of this Agreement), Agreement shall have any duties or responsibilities hereunder in their capacities its capacity as such.
(k) In the event that Bank of America or any of its Affiliates shall be or become an indenture trustee under the Trust Indenture Act of 1939 (as amended, shall have no rightsthe “Trust Indenture Act”) in respect of any securities issued or guaranteed by any Loan Party, powers, duties, liabilities, fiduciary relationships the parties hereto acknowledge and agree that any payment or obligations property received in satisfaction of or in respect of any Obligation of such Loan Party hereunder or under any other Loan Document by or on behalf of Bank of America in its capacity as the Administrative Agent or the Collateral Agent for the benefit of any Lender Party under any Loan Document (other than Bank of America or any an Affiliate of the other documents related hereto. Each Bank of the Lenders hereby (aAmerica) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral which is applied in accordance with the Collateral Documents. Loan Documents shall be deemed to be exempt from the requirements of Section 311 of the Trust Indenture Act pursuant to Section 311(b)(3) of the Trust Indenture Act.
(l) Each Issuing Bank shall act on behalf of the Lenders hereby with respect to any Letters of Credit issued by it and the documents associated therewith, and such Issuing Bank shall have all of the benefits and immunities (aA) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary provided to the provisions Administrative Agent in Article VIII with respect to any acts taken or omissions suffered by such Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Intercreditor Agreement.Letters of Credit as fully as if the term “Administrative Agent” as used in Article VIII included such Issuing Bank with respect to such acts or o
Appears in 1 contract
Sources: Credit Agreement (PharMerica CORP)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such each Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any person 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 the Borrower or GrafTech, a Borrower, any Subsidiary or other any Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. 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) the Agents shall not be subject to 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 applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), 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 failure to disclose, any information relating to the GrafTech, a Borrower or any of its the other Subsidiaries that is communicated to or obtained by the banks any bank serving as Agents Agent or any of their respective its Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Agents by the GrafTech, a Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent The Agents 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 them to be genuine and to have been signed or sent by the proper Personperson. Each of the The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Personperson, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for the Borrowera Borrower or GrafTech), independent accountants and other experts selected by itthem, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each of the The Agents may perform any and all of its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such Agentthem. Each of the The Agents and any such sub-agent may perform any and all of its their duties and exercise its their 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 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 an Agent. Subject to the appointment and acceptance of a successor to an Agent as provided in this paragraph, either such Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerBorrowers. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with with, if no Default or Event of Default shall have occurred and be continuing, the Borrowerconsent of the Borrowers (not to be unreasonably withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring resigning Agent gives notice of its resignation, then the retiring resigning Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor Agent which shall be a bank Lender with an office in New York, New York, or an Affiliate of any such bankLender. Upon the acceptance of its appointment as an Agent hereunder by a successorpredecessor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring resigning Agent, and the retiring resigning Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Borrowers and such successor. After such any Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring resigning 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 an 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Each Lender, by delivering its signature page to this Agreement or to an Assignment and Joint BookrunnersAssumption 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 Co-Syndication Administrative Agent or the Lenders on the Restatement Effective Date or the Second Restatement Effective Date. Except with respect to the exercise of setoff rights of any Lender in accordance with Section 9.08 or with respect to a Lender’s right to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Agents on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by an Agent on any of the Collateral pursuant to a public or private sale or other disposition, an Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and such Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations under this Agreement as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. In furtherance of the foregoing and not in limitation thereof, no Interest/Exchange Rate Protection Agreement or Commodity Rate Protection Agreement the obligations under which constitute Obligations will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such agreement shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph. The Agents shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of either Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall either Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. In case of the pendency of any proceeding with respect to any Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrowers or Guarantors) 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, LC Exposure and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and the Co-Documentation Agents Administrative Agent 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 proceeding is hereby authorized by each Lender, each Issuing Bank and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, the Issuing Banks or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents. The Lenders identified on the cover page of this Agreement)Agreement as the “Co-Syndication Agents”, in their capacities the entities identified on the cover of this Agreement as suchthe “Joint-Lead Arrangers”, the Lenders identified on the cover of this Agreement as the “Documentation Agents” and the Arrangers shall have no rights, powers, dutiesobligations, liabilities, fiduciary relationships responsibilities or obligations duties under this Agreement other than, in the case of any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documentssuch Lenders, including those terms thereof applicable to all Lenders as such. Without limiting the Collateral Agent and the provisions thereof authorizing the Required Secured Parties foregoing, such persons shall not have or be deemed to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release have a fiduciary relationship with any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementLender.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase is hereby appointed to act as Administrative Agent and CMIL is hereby appointed to act as London Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints each of authorizes the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any 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 such Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company, any Borrower or any Subsidiary or other Affiliate thereof as if it were not an such Agent under the Loan Documentshereunder. 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) the Agents no Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents no Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties10.02), and (c) except as expressly set forth in the Loan Documents, the Agents no Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company, any Borrower or any of its Subsidiaries Subsidiary that is communicated to or obtained by the banks bank serving as Agents Agent or any of their respective 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 under the circumstances as provided in Section 8.0210.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own bad faith, gross negligence or willful wilful misconduct. Each No Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the a Borrower or a Lender, and the Agents no such Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents Such Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of each Agent the Agents 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either any Agent may resign at any time by notifying the Lenders and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, right (in consultation with, and with the Borrowerconsent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Article VII), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 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 an 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, any other Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, None of the institutions named as Co-Syndication Agents and or Documentation Agent in the Co-Documentation Agents (each as identified on the cover page heading of this Agreement)Agreement shall, in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations responsibilities of any kind under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Kellogg Co)
The Agents. Each of the Lenders and the Issuing Lender hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent JPMorgan Chase Bank, N.A. as its agent and authorizes such Agent JPMorgan Chase Bank, N.A., in its capacity as administrative agent and collateral agent, (i) to sign and deliver the Collateral Documents and (ii) to take such actions on its behalf and to exercise such powers as are delegated to such the Agent by the terms of the Loan Financing Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks The bank serving as an the 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 the 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 an the Agent under the Loan Documentshereunder. The Agents Agent shall not have any duties or obligations except those expressly set forth in the Loan Financing Documents. Without limiting the generality of the foregoing, (a) the Agents Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents Agent 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 Financing Documents that the applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties10.02), and (c) except as expressly set forth in the Loan Financing Documents, the Agents Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Agent or any of their respective its Affiliates in any capacity. No The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.0210.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Agent by the Borrower or a Lender, and the Agents Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Financing Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Financing Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Financing Document or any other agreement, instrument or document or document, (v) the satisfaction of any condition set forth in Article IV 4 or elsewhere in any Loan Financing Document, other than to confirm receipt of items expressly required to be delivered to the applicable Agent, or (vi) the existence, genuineness or value of any of the Collateral or the validity, perfection, recordation, priority or enforceability of any Lien on any of the Collateral. Each The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents The 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. Each The Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents The 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 the Agent. Each of the Agents The Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each the 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either the Agent may resign at any time by notifying the Lenders Lenders, the Issuing Lender and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Lender, appoint a successor 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such the Agent’s resignation hereunder, the provisions of this Article and Section 8.03 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any Loan other Financing Document, any related agreement or any document furnished hereunder or thereunder. Nothing in any Financing Document shall impose on Citicorp USA, Inc., in its capacity as syndication agent, or on any of General Electric Capital Corporation, The Joint Lead Arrangers and Joint BookrunnersCIT Group/Business Credit, the Co-Syndication Agents and the Inc. or ▇▇▇▇▇ Fargo Foothill, in its capacity as Co-Documentation Agents (each as identified on the cover page of this Agreement)Agent, in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships any duty or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementresponsibility whatsoever.
Appears in 1 contract
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms hereof and of the Loan other Credit Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the The bank or banks serving as an Agent the Agents hereunder shall have the same rights and powers in its their capacity as a Lender Lenders as any other Lender and may exercise the same as though it they were not an AgentAgents, and such bank or banks and its 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 it they were not an Agent under the Loan DocumentsAgents hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, foregoing (a) the Agents shall not be subject to 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 hereby that the applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured PartiesMajority Lenders, and (c) except as expressly set forth in the Loan Documentsherein, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks serving as Subsidiary. The Agents or any of their respective Affiliates in any capacity. No Agent shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Majority Lenders (or such other number or percentage of the Lenders Lenders, as shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Partiesmay be, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Agents by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection with any Loan Documentherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein or therein, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent The Agents 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 them to be genuine and to have been signed or sent by the proper Person. Each of the The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem with reasonable care, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each of the The Agents may perform any and all of its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such Agentthe Agents. Each of the The Agents and any such sub-agent may perform any and all of its their duties and exercise its their rights and powers through their respective Related PartiesAffiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties Affiliates of each Agent the Agents 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Majority Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation right to appoint a successor with the Borrower, to appoint a successor'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 (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent which shall be a bank or an Affiliate thereof, in each case with a net worth of at least $1,000,000,000 and an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successorhereunder. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the its 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 it while it was acting as an 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 any Loan Documentthis Agreement, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Notwithstanding any other provision contained herein, each Lender acknowledges that the Administrative Agent is not acting as an agent of the Borrower and Joint Bookrunnersthat the Borrower will not be responsible for acts or failures to act on the part of the Administrative Agent. Without prejudice to the provisions of this Article VIII, each Lender 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 Co-Syndication Agents "fonde de pouvoir") of the Lenders 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 fonde 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 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 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 Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any pro rata portion of the other documents related heretoobligations and indebtedness secured by any pledge of any such debenture and owing to each Lender, and (ii) each Lender 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 Lenders hereby fonde de pouvoir and the Custodian shall (a) agrees have the sole and exclusive right and authority to exercise, except as may be bound otherwise specifically restricted by the terms hereof, all rights and remedies given to fonde 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 of the Collateral Documents, including those terms thereof applicable 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 provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunderLenders, and (bc) irrevocably authorizes 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 shall be deemed to have consented to and confirmed: (y) the Collateral Agent fonde de pouvoir as the Person holding the power of attorney as aforesaid and to release any Lien on any Collateral in accordance with the Collateral Documents. Each have ratified, as of the Lenders hereby date it becomes a Lender, all actions taken by the fonde de pouvoir in such capacity, (az) authorizes the Custodian as the agent and instructs custodian as aforesaid and to have ratified, as of the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured date it becomes a Lender, all actions taken by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of Custodian in such Intercreditor Agreementcapacity.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such each Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any 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 UCAR, Global, the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. 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) the Agents shall not be subject to 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 applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties10.02), 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 failure to disclose, any information relating to UCAR, Global, the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks any bank serving as Agents Agent or any of their respective its Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.0210.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Agents by UCAR, Global, the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV V or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent The Agents 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 them to be genuine and to have been signed or sent by the proper Personperson. Each of the The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Personperson, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each of the The Agents may perform any and all of its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such Agentthem. Each of the The Agents and any such sub-agent may perform any and all of its their duties and exercise its their 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 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 an 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 any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
The Agents. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks The bank serving as an the Administrative Agent and Collateral 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 the Administrative Agent or Collateral Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an the Administrative Agent under the Loan Documentsor Collateral 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, (a) the Agents shall not be subject to 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 applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan DocumentsDocuments (including any provision that expressly provides that either Agent has received information for, or on the instructions of, any Lender), the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent The Agents shall not be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent them by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative Agent or the Collateral Agent. Each Agent The Agents 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 them to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerCompany), 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 of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Administrative Agent or Collateral Agent. Subject to the appointment and acceptance of a successor Agent successor, as provided in this paragraph, either Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 an Agent. 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Credit Agreement (Labone Inc/)
The Agents. Each In order to expedite the transactions contemplated by this Agreement, CSFB is hereby appointed to act as Administrative Agent and Collateral Agent on behalf of the Lenders hereby irrevocably appoints each and Issuing Banks (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as its agent the "Agents"). Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes such Agent the Agents to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to such Agent the Agents by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In additionThe Administrative Agent is hereby expressly authorized by the Lenders and the Issuing Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of L/C Disbursements and all other amounts due to the extent required under the laws Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of any jurisdiction, each payment so received; (b) to give notice on behalf of each of the Lenders hereby grants to the Collateral Borrower of any Event of Default specified in this Agreement of which the Administrative Agent any required powers has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of attorney to execute all notices, financial statements and enforce any Collateral Document governed other materials delivered by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower or any Subsidiary other Loan Party pursuant to this Agreement or the other Affiliate thereof Loan Documents as if it were not an Agent under received by the Loan Documents. The Agents shall not have any duties or obligations except those expressly set forth in the Loan DocumentsAdministrative Agent. Without limiting the generality of the foregoing, (a) the Agents shall not be subject are hereby expressly authorized to execute any fiduciary and all documents (including releases) with respect to the Collateral and the Guarantee Agreements and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement, the Security Documents and the Guarantee Agreements, and the Agents are hereby expressly authorized to rely on any certificate delivered by the Borrowers as to adverse tax consequences, third party consent requirements, expenses, regulatory consequences 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information matters relating to the Borrower Collateral and Guarantee Requirement, including any certificate delivered under Section 4.02(h), 5.03(d) or any of its Subsidiaries that is communicated to or obtained by 9.08(b). Neither the banks serving as Agents or nor any of their respective Affiliates in any capacity. No Agent directors, officers, employees or agents shall be liable as such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its his own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower , or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with herewith, or be required to ascertain or to make any Loan Document, (iii) inquiry concerning the performance or observance by the Borrower or any other Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, (iv) the genuineness, validity, enforceability, enforceability or effectiveness or genuineness of any Loan Document this Agreement or any other agreementLoan Documents, instrument instruments or document agreements. The Agents shall in all cases be fully protected in acting, or (v) refraining from acting, in accordance with written instructions signed by the satisfaction of Required Lenders and, except as otherwise specifically provided herein, such instructions and any condition set forth in Article IV action or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to inaction pursuant thereto shall be delivered to binding on all the applicable AgentLenders. Each Agent shall shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Neither the Agents nor any of their respective directors, officers, employees or agents shall have any responsibility to the Borrower or any other Loan Party on account of the failure of or delay in performance or breach by any Lender or Issuing Bank of any of its obligations hereunder or to any Lender or Issuing Bank on account of the failure of or delay in performance or breach by any other Lender or Issuing Bank or the Borrower or any other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each of the Agents also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents 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 Lenders hereby acknowledge that neither Agent shall be under 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 preceding paragraphs 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 an AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders (orLenders, in acting jointly with the case Borrower if no Event of the Collateral AgentDefault shall have occurred and be continuing, the Required Secured Parties) shall have the right, in consultation with the Borrower, right to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successorhereunder. After such the Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.05 shall continue in effect for the its 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 it while it was acting as 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 Borrower or any of the Subsidiaries or other Affiliate thereof as if it were not an 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, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and Agent, the Collateral Agent as its agent and authorizes such each Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. 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) the Agents no Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents no Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documents, the Agents no Agent shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks any bank serving as Agents an Agent or any of their respective Affiliates in any capacitycapacity (other than as an Agent). 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each No Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by Holdings, the Borrower or a Lender, and the Agents no Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 The Collateral Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for the Collateral Agent and the Lenders for purposes of the Agents perfection of all security interests and Liens with respect to the Borrower's and any Loan Party's respective Deposit Accounts and Securities Accounts maintained with, and Cash and cash equivalents held by, such Lender. 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 the preceding paragraphs 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 an Agent. Subject to Effective upon the appointment and acceptance of a successor to such Agent as provided in this paragraph, either any Agent may resign at any time by notifying upon 30 days notice to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrowerconsent of the Borrower (such consent not to be unreasonably withheld or delayed and such consent not to be required if an Event of Default under clause (a), (g) or (h) of Section 7.01 has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent's resignation shall nevertheless thereupon become effective, and the Lenders shall assume and perform all of the duties of the Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided herein; provided, that the retiring Agent may, shall be discharged from its duties and obligations hereunder and the other Loan Documents (except that in the case of possessory Collateral held by the Collateral Agent on behalf of the LendersSecured Parties under any of the Loan Documents, appoint the retiring Collateral Agent shall continue to hold such possessory Collateral solely as nominee and at the expense of the Borrower until such time as a successor Collateral Agent which is appointed and the retiring Collateral Agent shall be a bank with an office in New York, New York, or an Affiliate continue to receive the benefit of any the provisions of Section 9.03 during such bankperiod). Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such any Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, Article VIII is subject to revision by the Co-Syndication Agents and Administrative Agent with the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any consent of the other documents related hereto. Each of the Lenders hereby Borrower (a) agrees such consent not to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementunreasonably withheld).
Appears in 1 contract
Sources: Senior Secured Loan Agreement (Hawaiian Telcom Holdco, Inc.)
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such each Agent to take such actions on its behalf behalf, including execution of the other Loan Documents, as applicable, and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks financial institution serving as an Agent hereunder and under the other Loan Documents shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such bank institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. 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) the Agents shall not be subject to 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), 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 failure to disclose, any information relating to the Borrower any Loan Party or any of its Subsidiaries that is communicated to or obtained by the banks institution serving as Agents an Agent or any of their respective its Affiliates in any capacity. No Neither 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Neither Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower, the Borrower Administrative Agent or a Lender, and the Agents neither Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vvi) the satisfaction of any condition set forth in Article IV III or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. If either Agent receives notice of a Default or Event of Default, such Agent shall promptly notify the applicable AgentLenders thereof. 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerBorrowers), 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 of the Agents 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 of the Agents Agent and any such sub-agent of such Agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as their activities as an Agent. Subject to the appointment and acceptance of a successor Administrative Agent or Collateral Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders other Agent, the Lenders, the Issuing Bank and the BorrowerBorrowers. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrowerconsent of the Borrowers (such consent not to be unreasonably withheld); provided that, no such consent shall be required at any time when an Event of Default has occurred and is continuing, to appoint a successorsuccessor Administrative Agent or Collateral Agent, as applicable. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Administrative Agent or Collateral Agent, as applicable, which shall be (a) a commercial bank with an office organized under the laws of the United States or of any State thereof or doing business in New York, New York, the United States and having a combined capital and surplus of at least $250,000,000 or (b) an Affiliate of any such commercial bank. Upon the acceptance by a successor of its appointment as an Administrative Agent by a successoror Collateral Agent, as applicable, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent or Collateral Agent, as applicable, and the retiring Administrative Agent or Collateral Agent, as applicable, shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower Borrowers to a successor Administrative Agent or Collateral Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Borrowers and such successor. After such the Administrative Agent’s 's or the Collateral Agent's resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent or Collateral Agent, as applicable, its sub-sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Administrative Agent or Collateral Agent, as applicable. Each Lender acknowledges that it has, independently and without reliance upon the Agents Administrative Agent, the Collateral 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, the Collateral Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Each Lender hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent or the Collateral Agent; (b) neither the Administrative Agent nor the Collateral Agent (i) makes any representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report or (ii) shall be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and Joint Bookrunnersany Person performing any field examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties' books and records, as well as on representations of the Loan Parties' personnel, and neither the Administrative Agent nor the Collateral Agent undertakes any obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, not share the Report with any Loan Party or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Agents and any such other Person preparing a Report harmless from and against, the Co-Syndication Agents claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the Co-Documentation Agents (each as identified on direct or indirect result of any third parties who obtain all or part of any Report through the cover page of this Agreement)indemnifying Lender. Anything herein to the contrary notwithstanding, in their capacities as such, the Arranger shall have no rights, not any powers, duties, liabilities, fiduciary relationships duties or obligations responsibilities under any Loan Document this Agreement or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Loan Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to such the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In additionFor purposes of this Article VIII, all references to the extent required under Administrative Agent shall be deemed to be references to both the laws of any jurisdiction, each of the Lenders hereby grants to Administrative Agent and the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalfAgent. Each of the banks The bank serving as an 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 an 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 an the Administrative Agent under the Loan Documentshereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents 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 Agents Administrative Agent 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 applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.022.05(j) or, in the case of the Collateral Documents, the Required Secured Partiesand Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Agents Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Administrative Agent or any of their respective its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower or a Lender, and the Agents Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent. Each of the Agents The Administrative Agent and any such sub-agent subagent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent subagent and to the Related Parties of each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either The Administrative Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Bank, appoint a successor Administrative Agent which shall be a bank with an office in Charlotte, North Carolina or New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. 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 such the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, Lenders identified in this Agreement as the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the Required Secured Parties foregoing, neither the Syndication Agent nor the Documentation Agent shall have or be deemed to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release have a fiduciary relationship with any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementLender.
Appears in 1 contract
Sources: Credit Agreement (Ameripath Inc)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such the Administrative Agent, and each of the Lenders also hereby irrevocably appoints the London Administrative Agent as its sub-agent and authorizes the London Administrative Agent, to take such actions on its behalf and to exercise such powers as are delegated to such the Administrative Agent and the London Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks [[NYCORP:3024149v15:4452W:11/30/07--12:40 p]] The 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 such Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. The Agents bank serving as an Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents such Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents such Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documents, the Agents such Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks bank serving as Agents such Agent or any of their respective its Affiliates in any capacity. No An Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each An Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the a Borrower or a Lender, and the Agents such Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable such Agent. Each An Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents An 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. Each An Agent may consult with legal counsel (who may be counsel for the Borrowera Loan Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents An 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 of the Agents Such Agent and any such sub-agent may perform any and all of its duties and exercise its rights and [[NYCORP:3024149v15:4452W:11/30/07--12:40 p]] 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 each (i) the Administrative Agent and any such sub-agent and (ii) the London Administrative Agent and any 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 an Administrative Agent and as London Administrative Agent, respectively. Subject to the appointment and acceptance of a successor Administrative Agent or successor London Administrative Agent, as the case may be, as provided in this paragraph, either an Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks, the Company and the Borrowerother Agent. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrowerconsent of the Company (which consent shall not be unreasonably withheld, and shall not be required so long as any Event of Default set forth in clause (i) or (j) of Section 7.01 has occurred and is continuing) and the other Agent (which consent shall not be unreasonably withheld), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the such retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor Agent which shall be (i) a bank with an office in New York, New York, or an Affiliate of any such bank, for the successor Administrative Agent and (ii) a bank with an office in London, United Kingdom, or an Affiliate of any such bank, for the successor London Administrative Agent. Upon the acceptance of its appointment as an Administrative Agent or London 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 Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Company or any Subsidiary Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 an Agent. 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Each party hereto agrees and Joint Bookrunners, acknowledges that the Co-Syndication Agents Agent and the Co-Documentation Agents (each as identified on the cover page of this Agreement), Arrangers do not have any duties or responsibilities in their capacities as suchSyndication Agents and Arrangers, respectively, hereunder and shall have no rightsnot have, powersor become subject to, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related heretoliability hereunder in such capacities. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.[[NYCORP:3024149v15:4452W:11/30/07--12:40 p]]
Appears in 1 contract
Sources: Credit Agreement (Yum Brands Inc)
The Agents. Each of the Lenders and each Issuing Bank hereby irrevocably appoints each of the Administrative Agent (which appointment, in the case of the Administrative Agent, is of JPMorgan Chase Bank, as successor to Toronto Dominion (Texas) Inc.) and the Collateral Agent as its agent and authorizes such Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks serving as an Agent hereunder JPMorgan Chase Bank shall have the same rights and powers in its capacity as a Lender hereunder as any other Lender and may exercise the same as though it JPMorgan Chase Bank were not an the Administrative Agent or the Collateral Agent, and such any bank serving in the capacity of Administrative Agent or Collateral Agent from time to time and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower any Credit Party or any Subsidiary subsidiary or other Affiliate of any thereof as if it were not an such Agent under the Loan Documentshereunder. The Agents Neither Agent shall not have any duties or obligations except those expressly set forth in this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, (a) the Agents neither Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents neither Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by this Agreement and the other Loan Documents that the applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured PartiesLenders, and (c) except as expressly set forth herein and in the other Loan Documents, the Agents neither Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower any Credit Party or any of its Subsidiaries respective subsidiaries that is communicated to or obtained by the banks bank serving as Agents such Agent or any of their respective its Affiliates in any capacity. No Neither 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, if provided herein, with the consent or such other number or percentage at the request of the Required Lenders as shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Partiesa particular Class, or in the absence of its own gross negligence or willful wilful misconduct. Each Neither Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Borrower, a Lender or a Lenderthe other Agent, and the Agents neither Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this AgreementAgreement or the other Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or under any of the other Loan Documents or in connection with any Loan Documentherewith of therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or in any other Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any this Agreement, the other Loan Document Documents or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV V or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to such Agent. Neither Agent shall, except to the applicable Agentextent expressly instructed by the Required Lenders with respect to collateral security under the Security Documents, be required to initiate or conduct any litigation or collection proceedings hereunder or under any other Loan Document. 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents Either Agent may perform any and all of its duties duties, and exercise its rights and powers powers, by or through any one or more sub-agents appointed by such Agent. Each of the Agents Either Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each such 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 an such Agent. Subject to the appointment and acceptance of a successor Administrative Agent or Collateral Agent, as the case may be, as provided in this paragraph, either Agent may resign at any time by notifying the Lenders Lenders, each Issuing Bank, the Borrower and the Borrowerother Agent. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successorsuccessor Administrative Agent, and the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor Collateral Agent. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the such retiring Agent gives notice of its resignation, then the such retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor Administrative Agent or Collateral Agent, as the case may be, 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 an Administrative Agent or Collateral Agent, as the case may be, by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the such retiring Agent, and the such retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such an Agent’s resignation hereunder, the provisions of this Article IX and Section 8.03 10.03 shall continue in effect for the its 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 it while it was acting as an Administrative Agent or Collateral Agent, as the case may be. Each Lender acknowledges that it has, independently and without reliance upon the Agents Administrative Agent, the Collateral Agent, any Issuing Bank or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents Administrative Agent, the Collateral Agent, any Issuing Bank or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any this Agreement and the other Loan DocumentDocuments, any related agreement or any document furnished hereunder or thereunder. The Joint Anything herein to the contrary notwithstanding, none of the Bookrunner, Lead Arrangers and Joint BookrunnersArranger, the Co-Syndication Agents and the Co-Agent or Documentation Agents (each as identified listed on the cover page of hereof shall have any duties or responsibilities under this Agreement), except in their capacities capacity, if any, as such, shall have no rights, powers, duties, liabilities, fiduciary relationships Agents or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementhereunder.
Appears in 1 contract
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks The bank serving as an 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 an 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 an the Administrative Agent under the Loan Documentshereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, foregoing (a) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (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 applicable Agent is required permitted hereunder unless requested to exercise do so 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective Affiliates in any capacityLenders. 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 under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a LenderIn addition, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent The Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the The Agents 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. Each Agent of the Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of The Administrative Agent, the Agents CAF Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related PartiesAffiliates or its or its Affiliates' employees. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and agent, to the Related Parties Affiliates of each the Administrative Agent, the CAF Agent and any such sub-agentagent and to the directors, officers, employees, agents and shall apply to advisors of the Administrative Agent, the CAF Agent, any such sub-agent and their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an AgentAffiliates. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders (orLenders, in with the case consent of the Collateral Agent, the Required Secured PartiesBorrower (which shall not be unreasonably withheld) shall have the right, in consultation with the Borrower, right to appoint a successorsuccessor Agent from among the Lenders. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, with the consent of the Borrower (which shall not be unreasonably withheld), on behalf of the Lenders, appoint a successor Agent from among the Lenders which shall be a bank with an office in The City of New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successorhereunder. After such the Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the its 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 it while it was acting as an Agent. Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share at the time reimbursement is sought (based on its Commitment hereunder or, if the Commitments shall have expired or terminated, based on its portion of the total Revolving Credit Exposures and outstanding Competitive Loans) of any expenses incurred for the benefit of the Lenders by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Borrower and (b) 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 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 action taken or omitted by it or any of them under this Agreement, to the extent the same shall not have been reimbursed by the Borrower, provided that no Lender shall be liable to any Agent or any such other indemnified person for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of such Agent or any of its directors, officers, employees or 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 any Loan Documentthis Agreement, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, None of the institutions named as Co-Syndication Agents, Documentation Agent or Senior Managing Agents and in the Co-Documentation Agents (each as identified on the cover page heading of this Agreement)Agreement shall, in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations responsibilities of any kind under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Belo Corp)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the entities named as the Administrative Agent and the Collateral London Agent in the heading of this Agreement, and their successors in such capacities, to serve as its agent the Administrative Agent and the London Agent, respectively, under the Loan Documents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any Person serving as an 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 an Agent, and such bank Person and its Affiliates may accept deposits from, lend money to to, own securities of, act as the financial adviser or in any other advisory capacity for and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it such Person were not an Agent under hereunder and without any duty to account therefor to the Loan DocumentsLenders or the Issuing Banks. 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) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuingcontinuing (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Agents is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) the Agents shall not 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 applicable Agent is Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.02) or9.02); provided that no Agent shall be required to take any action that, in the case of the Collateral Documentsits opinion, the Required Secured Partiescould expose such Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries Subsidiary or other Affiliate thereof that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful misconductwilful misconduct (such absence to be presumed for purposes of this Article VIII unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan DocumentDocument or the occurrence of any Default, (iv) the sufficiency, 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, or satisfaction of any condition that expressly refers to the applicable matters described therein being acceptable or satisfactory to such Agent. Notwithstanding anything herein to the contrary, the Agents shall not have any liability arising from any confirmation of any Revolving Credit Exposure or the component amounts thereof., any determination of the Exchange Rate, the LC Exchange Rate or the US Dollar Equivalent or any determination of any rate that reflects the costs to any Lenders of making or maintaining any Loans as contemplated by Section 2.14. Each Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (including, if applicable, a Financial Officer). Each of the Agents Agent also may rely rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper PersonPerson (including, if applicable, a Financial Officer), and may act upon any such statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, amendment, extension or renewal of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, each Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless such Agent shall not incur any liability for relying thereonhave received notice to the contrary from such Lender or such Issuing Bank sufficiently in advance to the making of such Loan or the issuance, amendment, extension or renewal of such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for the any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents Agent may perform any of and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agentit. Each of the Agents Agent and any such sub-agent may perform any of and all of its duties and exercise its rights and powers through their itstheir respective Related Parties. The exculpatory provisions of the preceding paragraphs this Article shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities facility provided for herein as well as activities as an the Administrative Agent or the London Agent, as applicable. No Agent shall be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerCompany. Upon receipt of any such notice of resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s resignation hereunderhereunder and under the other Loan Documents, the provisions of this Article and Section 8.03 9.03 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 an Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Agents either Agent, any Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Agents either Agent, any Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Each Lender and Joint BookrunnersIssuing Bank, by delivering its signature page to this Agreement, or delivering its signature page to an Assignment and Assumption or an Issuing Bank Agreement pursuant to which it shall become a Lender or an Issuing Bank, as the case may be, hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on or prior to the Restatement Effective Date. Notwithstanding anything herein to the contrary, no Arranger, Co-Syndication Agents and the Co-Agent or Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, Agent shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or any an Issuing Bank), but all such Persons shall have the benefit of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable expense reimbursement and indemnities to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementextent provided for hereunder.
Appears in 1 contract
Sources: Credit Agreement (Expedia, Inc.)
The Agents. Each of the Lenders and each Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. 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) the Agents shall not be subject to 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 applicable 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 8.028.02 or Section 8.02A) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective 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 under the circumstances as provided in Section 8.028.02 or Section 8.02A) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificatecertificate (including any Borrowing Base Certificate), report or other document delivered hereunder or in connection with any Loan Document, (iii) qualification of (or lapse of any qualification of) any Account, Credit Card Receivable, Inventory or real property under the eligibility criteria set forth herein, other than eligibility criteria expressly referring to the matters described therein being acceptable or satisfactory to, or being determined by, the Collateral Agent, (iv) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (ivv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Agent. Notwithstanding anything herein to the contrary, the Agents shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrowers, any Lender or any Issuing Bank as a result of, any such determination of the Credit Exposure, Excess Availability, the Borrowing Base or the component amounts of any thereof. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificatecertificate (including any Borrowing Base Certificate), consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerCompany), 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 Lender and Issuing Bank hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of any Agent; (b) the Agents (i) make no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to any Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and any Person performing any field examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel, and that the Agents undertake no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use and not share any Report with any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend and hold the Agents, each other Person preparing a Report and the Related Parties of any of the foregoing harmless from and against, the claims, actions, proceedings, damages, costs, expenses and other amounts (including reasonable attorney fees) incurred by any of them as the direct or indirect result of any third parties who obtain all or part of any Report through the indemnifying Lender. Each of the Agents 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 of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. In addition, if either Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and such 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 no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documents. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement) (each of the foregoing, in its capacity as such, a “Titled Person”), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Revolving Credit Agreement (Victoria's Secret & Co.)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. 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) the Agents shall not be subject to 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective 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 under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) qualification of (or lapse of any qualification of) any Account, Credit Card Receivable or Inventory under the eligibility criteria set forth herein, other than eligibility criteria expressly referring to the matters described therein being acceptable or satisfactory to, or being determined by, the Collateral Agent, (iv) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (ivv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (vvi) the satisfaction of any condition set forth in Article IV Article 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerCompany), 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 of the Agents 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 of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrowerconsent of the Company, to appoint a successor. In addition, if either Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and such 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 a Specified Event of Default hereunder, when no consent shall be required), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documents. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement) (each of the foregoing, in its capacity as such, a “Titled Person”), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to (i) release any Lien Liens on any Non-ABL Priority Collateral in accordance with an Intercreditor Agreement and (ii) release any Liens on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an the ABL Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and each other Acceptable Intercreditor Agreement, as applicable, pursuant to Sections 6.01 and 6.02 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Acceptable Intercreditor Agreement. Notwithstanding anything to the contrary herein, the Arrangers shall not have any right, power, obligation, liability, responsibility or duty under this Agreement, except in their respective capacities, as applicable, as the Administrative Agent or a Lender hereunder. Each Secured Party irrevocably authorizes and instructs the Administrative Agent to, and the Administrative Agent shall, upon request of the Company:
(a) without limiting Section 9.22, release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the occurrence of the Termination Date, (ii) that is sold or to be sold or transferred as part of or in connection with any Disposition permitted under the Loan Documents to a Person that is not a Loan Party, (iii) that does not constitute (or ceases to constitute) Collateral, (iv) if the property subject to such Lien is owned by a Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its Guarantee of the Obligations otherwise in accordance with the Loan Documents, (v) as required under clause (d) below or (vi) if approved, authorized or ratified in writing by the Required Lenders (or such other number or percentage of Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02) in accordance with Section 9.02;
(b) without limiting Section 9.22 (but subject to the proviso to Section 9.22(a)), release any Subsidiary Guarantor from its obligations under the Collateral Agreement (i) if such Person ceases to be a Restricted Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions or any event or other circumstance permitted hereunder) and/or (ii) upon the occurrence of the Termination Date;
(c) [reserved];
(d) enter into subordination, intercreditor, collateral trust and/or similar agreements (and any amendments thereto) with respect to Indebtedness (including any Acceptable Intercreditor Agreement and any amendment thereto) that is (i) required or permitted to be subordinated hereunder or pari passu with the Liens securing the Obligations and/or (ii) secured by Liens, and with respect to which Indebtedness and/or Liens, this Agreement contemplates an intercreditor, subordination, collateral trust or similar agreement. Upon the request of the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under the Collateral Agreement or its Lien on any Collateral pursuant to this Article 8. In each case as specified in this Article 8, the Administrative Agent will (and each Lender hereby authorizes the Administrative Agent to), at the Company’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents, to subordinate its interest therein, or to release such Loan Party from its obligations under the Collateral Agreement, in each case in accordance with the terms of the Loan Documents and this Article 8.
Appears in 1 contract
Sources: First Lien Credit Agreement (Victoria's Secret & Co.)
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral London Agent as its agent and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any 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 the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. 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) the Agents no Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents no Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties10.02), and (c) except as expressly set forth in the Loan Documents, the Agents no Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Agent or any of their respective 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 under the circumstances as provided in Section 8.0210.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each No Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents no Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerCompany), 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 of the Agents 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 of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent agent as provided in this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Borrowers to a successor Agent agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Borrowers and such successor. After such any Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 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 any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
The Agents. Each of the Lenders and Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdictionjurisdiction other than the United States, each of the Lenders and the Issuing Banks hereby grants to the Collateral Agent Agents any required powers of attorney to execute and enforce any Collateral Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. Each of the banks 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 the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. 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) the Agents shall not be subject to 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 applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), 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 failure to disclose, any information relating to the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 9.03 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. Any Person 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 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 an Agent hereunder. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of a resignation by the Collateral Administrative Agent, ) or the Required Secured PartiesAdministrative Agent (in the case of a resignation by the London Agent) shall have the right, in consultation with the Borrower’s consent (which consent shall not be unreasonably withheld or delayed), to appoint a successor. If no successor Agent shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent which shall be a bank with an office in New York, New YorkYork (in the case of a resignation by the Administrative Agent), a bank with an office in London (in the case of a resignation by the London Agent) or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 an Agent. 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, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint parties agree that none of the Co-Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and Agent or the Co-Documentation Agents (each as identified referred to on the cover page of this Agreement shall, in its capacity as such, have any powers, duties or responsibilities under this Agreement or any other Loan Document. Each Lender acknowledges that in no event shall any Obligations in respect of any Hedging Agreement, cash management services or “Card Programs” (as defined in the Collateral Agreement), in their capacities each case provided by an Affiliate of a Lender, constitute Obligations for the purpose of any Security Document governed by the laws of The United Kingdom unless the documents evidencing such Hedging Agreement, cash management services or Card Programs, as suchapplicable, shall have no rightscontain the following language: “We [name of hedging counterparty, powerscash management provider or Card Programs provider] hereby confirm that by entering into this [insert name of contract], dutieswe intend to be party to the Trust Agreement (the “Trust Agreement”) dated February 16, liabilities2005, fiduciary relationships or obligations under any Loan Document or any of between, among others, JPMorgan Chase Bank, N.A., as Security Trustee (the other documents related hereto. Each of “Security Trustee”), and the Lenders hereby Secured Parties named therein, and (a) agrees undertake to perform all the obligations expressed in the Trust Agreement to be assumed by a Secured Party and (b) agree that we shall be bound by all the provisions of the Collateral DocumentsTrust Agreement, including those terms thereof applicable to as if we had been an original party thereto. We further agree that the Collateral Agent Security Trustee may rely upon our undertaking and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementagreement given herein.”
Appears in 1 contract
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to such the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In additionFor purposes of this Article VIII, all references to the extent required under Administrative Agent shall be deemed to be references to both the laws of any jurisdiction, each of the Lenders hereby grants to Administrative Agent and the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalfAgent. Each of the banks The bank serving as an 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 an 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 an the Administrative Agent under the Loan Documentshereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents 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 Agents Administrative Agent 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 applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.022.05(j) or, in the case of the Collateral Documents, the Required Secured Partiesand Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Agents Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, Intermediate Holdings the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Administrative Agent or any of their respective its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.022.05(j) or, in the case of the Collateral Documents, the Required Secured Parties, and Section 9.02) or in the absence of its own gross negligence or willful misconduct. Each The Administrative Agent shall not be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Intermediate Holdings, the Borrower or a Lender, and the Agents Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Each of the Agents The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerBorrower (except if a Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Bank, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. 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 such the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, Lenders identified in this Agreement as the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the Required Secured Parties foregoing, neither the Syndication Agent nor the Documentation Agent shall have or be deemed to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release have a fiduciary relationship with any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementLender.
Appears in 1 contract
Sources: Credit Agreement (Wix Filtration Media Specialists, Inc.)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms hereof and of the Loan other Credit Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the The bank or banks serving as an Agent the Agents hereunder shall have the same rights and powers in its their capacity as a Lender Lenders as any other Lender and may exercise the same as though it they were not an AgentAgents, and such bank or banks and its 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 it they were not an Agent under the Loan DocumentsAgents hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, foregoing (a) the Agents shall not be subject to 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 hereby that the applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured PartiesMajority Lenders, and (c) except as expressly set forth in the Loan Documentsherein, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks serving as Subsidiary. The Agents or any of their respective Affiliates in any capacity. No Agent shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Majority Lenders (or such other number or percentage of the Lenders Lenders, as shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Partiesmay be, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Agents by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV III or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent The Agents 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 them to be genuine and to have been signed or sent by the proper Person. Each of the The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem with reasonable care, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each of the The Agents may perform any and all of its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such Agentthe Agents. Each of the The Agents and any such sub-agent may perform any and all of its their duties and exercise its their rights and powers through their respective Related PartiesAffiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties Affiliates of each Agent the Agents 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Majority Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation right to appoint a successor with the Borrower, to appoint a successor'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 (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent which shall be a bank or an Affiliate thereof, in each case with a net worth of at least $1,000,000,000 and an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successorhereunder. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the its 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 it while it was acting as an 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 any Loan Documentthis Agreement, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Notwithstanding any other provision contained herein, each Lender and Joint Bookrunners, Issuing Bank acknowledges that the Co-Syndication Agents Administrative Agent is not acting as an agent of the Borrower and that the Co-Documentation Agents (each as identified Borrower will not be responsible for acts or failures to act on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any part of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementAdministrative Agent.
Appears in 1 contract
Sources: Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
The Agents. Each of the Lenders Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent and authorizes such Agent each of the Agents to take such actions on its behalf behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each The bank serving as either of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks serving as an Agent 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 an the Agent or the Security 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 an the Agent under or the Loan DocumentsSecurity 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, (a) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a an Event of 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 except, subject to the last paragraph of this Article VIII, discretionary rights and powers expressly contemplated by the Loan Documents that the applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), 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 failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks bank serving as Agents the Agent or any of their respective its Affiliates in any capacity. No Agent Neither of the Agents 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent Neither of the Agents shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and neither of the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document 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 any of the applicable AgentAgents. Each Agent of the Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each Agent of the Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 Agentthe Agents. Each of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent any of the Agents 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 an Agenteither of the Agents. Subject to the appointment and acceptance of a successor Agent or Security Agent as provided in this paragraph, either Agent any of the Agents may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the consent (not to be unreasonably withheld or delayed) of the Borrower, to appoint a successor, which shall be another Lender; provided that during the existence and continuation of an Event of Default, no consent of the Borrower shall be required. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 thirty (30) days after the retiring Agent or Security Agent gives notice of its resignation, then the retiring Agent or Security Agent may, on behalf of the LendersBanks, appoint a successor Agent or Security Agent which shall be a commercial bank with an office in New York, New York, or an Affiliate of any such bankcommercial bank reasonably acceptable to the Borrower. Upon the acceptance of its appointment as an Agent or Security 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 or Security Agent, and the retiring Agent or Security Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Agent or Security Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such Agent’s either of the Agents’ resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Agent or Security Agent, its sub-agents sub‑agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Agent or Security Agent. Each Lender Bank acknowledges that it has, independently and without reliance upon any of the Agents 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 any of the Agents 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint BookrunnersEach Bank, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page by virtue of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any its acceptance of the other documents related hereto. Each benefits of the Lenders Cash Collateral Agreement, hereby (a) further authorizes the Security Agent, on behalf of and for the benefit of the Banks, to enter into the Cash Collateral Agreement as secured party and each Bank agrees to be bound by the provisions terms of the Cash Collateral DocumentsAgreement; provided that the Security Agent shall not (a) enter into or consent to any material amendment, including those terms thereof applicable to modification, termination or waiver of any provision contained in the Cash Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments Agreement or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes release any Cash Collateral (except as otherwise expressly permitted or required pursuant to the terms of this Agreement or the Cash Collateral Agreement), in each case without the prior consent of the Required Lenders; provided further, however, that, without further written consent or authorization from the Lenders, the Security Agent may execute any documents or instruments necessary to release any Lien on encumbering any Cash Collateral if the Guaranteed Amount as of such date is at least $100,000,000. Anything contained in any of the Loan Documents to the contrary notwithstanding, the Borrower, the Security Agent and each Bank hereby agree that no Bank shall have any right individually to realize upon any Cash Collateral under the Cash Collateral Agreement, it being understood and agreed that all powers, rights and remedies under the Cash Collateral Agreement may be exercised solely by the Security Agent for the benefit of the Banks in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementterms thereof.
Appears in 1 contract
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms hereof and of the Loan other Credit Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the The bank or banks serving as an Agent the Agents hereunder shall have the same rights and powers in its their capacity as a Lender Lenders as any other Lender and may exercise the same as though it they were not an AgentAgents, and such bank or banks and its 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 it they were not an Agent under the Loan DocumentsAgents hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, foregoing (a) the Agents shall not be subject to 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 hereby that the applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured PartiesMajority Lenders, and (c) except as expressly set forth in the Loan Documentsherein, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks serving as Subsidiary. The Agents or any of their respective Affiliates in any capacity. No Agent shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Majority Lenders (or such other number or percentage of the Lenders Lenders, as shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Partiesmay be, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Agents by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection with any Loan Documentherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein or therein, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent The Agents 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 them to be genuine and to have been signed or sent by the proper Person. Each of the The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem with reasonable care, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each of the The Agents may perform any and all of its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such Agentthe Agents. Each of the The Agents and any such sub-agent may perform any and all of its their duties and exercise its their rights and powers through their respective Related PartiesAffiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties Affiliates of each Agent the Agents 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Majority Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation right to appoint a successor with the Borrower, to appoint a successor’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 (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent which shall be a bank or an Affiliate thereof, in each case with a net worth of at least $1,000,000,000 and an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successorhereunder. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the its 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 it while it was acting as an 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 any Loan Documentthis Agreement, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Notwithstanding any other provision contained herein, each Lender acknowledges that the Administrative Agent is not acting as an agent of the Borrower and Joint Bookrunnersthat the Borrower will not be responsible for acts or failures to act on the part of the Administrative Agent. Without prejudice to the provisions of this Article VIII, each Lender 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 Co-Syndication Agents “fondé de pouvoir”) of the Lenders 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 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 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 Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any pro rata portion of the other documents related heretoobligations and indebtedness secured by any pledge of any such debenture and owing to each Lender, and (ii) each Lender 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 Lenders hereby fondé de pouvoir and the Custodian shall (a) agrees have the sole and exclusive right and authority to exercise, except as may be bound 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 of the Collateral Documents, including those terms thereof applicable 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 provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunderLenders, and (bc) irrevocably authorizes 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 shall be deemed to have consented to and confirmed: (y) the Collateral Agent fondé de pouvoir as the person holding the power of attorney as aforesaid and to release any Lien on any Collateral in accordance with the Collateral Documents. Each have ratified, as of the Lenders hereby date it becomes a Lender, all actions taken by the fondé de pouvoir in such capacity, (az) authorizes the Custodian as the agent and instructs custodian as aforesaid and to have ratified, as of the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured date it becomes a Lender, all actions taken by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of Custodian in such Intercreditor Agreementcapacity.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms hereof and of the Loan other Credit Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the The bank or banks serving as an Agent the Agents hereunder shall have the same rights and powers in its their capacity as a Lender Lenders as any other Lender and may exercise the same as though it they were not an AgentAgents, and such bank or banks and its 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 it they were not an Agent under the Loan DocumentsAgents hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, foregoing (a) the Agents shall not be subject to 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 hereby that the applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured PartiesMajority Lenders, and (c) except as expressly set forth in the Loan Documentsherein, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective 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 under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 an 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 any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.any
Appears in 1 contract
Sources: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent under the Loan Documents, and authorizes the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent to take such actions on its behalf and to exercise such powers as are delegated to such the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In additionExcept as expressly set forth under this Article VIII, to the extent required under the laws no Borrower nor any Subsidiary shall have rights as third party beneficiary of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalfprovisions. Each of the banks serving as an Agent Agents 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 an Agent, and such bank Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the any Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not an Agent under hereunder and without any duty to account therefor to the Loan DocumentsLenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents 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 Agents Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary powerspower, except discretionary rights and powers expressly contemplated by the Loan Documents that the applicable Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.02) orthe Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the case of the Collateral Documents, the Required Secured PartiesAdministrative Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Agents Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Borrowers, any Subsidiary or any Affiliate of its Subsidiaries any of the foregoing that is communicated to or obtained by the banks Person serving as Agents Administrative Agent or any of their respective its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.02the Loan Documents) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment. Each The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower FCX, a Lender or a Lenderan Issuing Bank, and the Agents Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan DocumentDocument or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Each Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from (A) any confirmation of the Revolving Exposure or the component amounts thereof, (B) any confirmation of the aggregate Revolving Exposure attributable to Loans made to PTFI and Letters of Credit issued at the request of PTFI or of the component amounts thereof or (C) any determination as to whether a Letter of Credit constitutes a Financial Letter of Credit or a Performance Letter of Credit. The Administrative Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). Each of the Agents The Administrative Agent also may rely shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and shall not incur may act upon any liability for relying thereonsuch statement prior to receipt of written confirmation thereof. Each The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowerBorrowers), 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 of the Agents The Administrative Agent may perform any of and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such the Administrative Agent. Each of the Agents The Administrative Agent and any such sub-agent may perform any of and all of its their duties and exercise its their rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs this Article shall apply to any such sub-agent and to the Related Parties of each the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Administrative Agent. Subject to the appointment and acceptance terms of a successor Agent as provided in this paragraph, either the Administrative Agent may resign at any time by notifying from its capacity as such. In connection with such resignation, the Lenders Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks and the BorrowerBorrowers. Upon receipt of any such notice of resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerBorrowers, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignationintent to resign, then the retiring Administrative Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor Agent 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 an Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between by the Borrower Borrowers and such successor. After Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrowers, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation hereunderfrom its capacity as such, the provisions of this Article and Section 8.03 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an AgentAdministrative Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon either Agent, any person listed on the Agents cover page of this Agreement as an arranger, or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon either Agent, any person listed on the Agents cover page of this Agreement as an arranger, or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Each Lender, by delivering its signature page to this Agreement on or prior to the Closing Date, or delivering its signature page to an Assignment and Joint BookrunnersAssumption or an Incremental Facility Agreement pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Co-Administrative Agent or the Lenders on the Closing Date. No Credit Party shall have any right individually to enforce any Guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Credit Parties in accordance with the terms thereof. Each Credit Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. Notwithstanding anything herein to the contrary, neither the Syndication Agents and the Co-Documentation Agents (each as identified Agent nor any Person named on the cover page of this Agreement), in their capacities Agreement as such, an arranger or a documentation agent shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article are solely for the benefit of the Agents, the Lenders and the Issuing Banks, and none of the Borrowers nor any other Loan Party shall have any rights as a third party beneficiary of any such provisions. Each Lender represents and warrants, as of the date such Person became a Lender party hereto, to, and covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative Agent and the institutions named as Joint Lead Arrangers, Joint Bookrunners, Syndication Agent and Documentation Agents listed on the cover page hereof and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any of its Subsidiaries, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Plans in connection with the Loans, the Letters of Credit and the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit and the Commitments and this Agreement,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit and the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit and the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit and the Commitments and this Credit Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender. In addition, unless clause (i) of the immediately preceding paragraph is true with respect to such Lender or such Lender has not provided another representation, warranty and covenant as provided in clause (iv) of the immediately preceding paragraph, such Lender further represents and warrants, as of the date such Person became a Lender party hereto, to, and covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the institutions named as Bookrunners, Syndication Agent, Documentation Agents or Lead Arrangers on the cover page hereof and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any of its Subsidiaries, that:
(i) none of the Administrative Agent or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documentsinstitutions named as Joint Lead Arrangers, including those terms thereof applicable to the Collateral Joint Bookrunners, Syndication Agent and Documentation Agents on the provisions thereof authorizing the Required Secured Parties cover page hereof or their respective Affiliates is a fiduciary with respect to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.t
Appears in 1 contract
The Agents. Each of the Lenders Lender and each Issuing Lender hereby irrevocably appoints each of the US Administrative Agent, the Euro Administrative Agent and the Collateral Canadian Administrative Agent as its agent agents and authorizes such each Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Lender 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 the any Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. The Agents shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, (b) the 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 hereby that the applicable Agent is Agents 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties10.02), and (c) except as expressly set forth in the Loan Documentsherein, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Borrowers or any of its their Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.0210.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent The Agents shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to such Agent the Agents by the a Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article ARTICLE IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent The Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the The Agents also may rely upon any statement made to it them orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for the BorrowerBorrowers), 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 of the The Agents may perform any and all of its their duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agentthe Agents. Each of the The Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent the Agents 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 an the Agents. In addition, each Lender and each Issuing Lender hereby indemnifies the Agents (to the extent not reimbursed by the Borrowers), ratably according to its respective pro rata share of the total of the Commitments, or if no Commitments are outstanding, the respective pro rata share of the total of the Commitments immediately prior to the time Commitments ceased to be outstanding held by each of them, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Agents (or any of them) in any way relating to or arising out of this Agreement or any action taken or omitted by the Agents under this Agreement or the other Loan Documents (including any action taken or omitted under ARTICLE II of this Agreement); provided that such indemnity shall not, as to any Agent, be available to the extent that such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence or willful misconduct of such Agent. Without limitation of the foregoing, each Lender and each Issuing Lender agrees to reimburse each of the Agents promptly upon demand for its respective pro rata share of the total of the Commitments of any out-of-pocket expenses (including reasonable counsel fees) incurred by the Agents (or any of them) in connection with the preparation, execution, administration or enforcement of, or legal advice in respect of rights or responsibilities under, this Agreement or the other Loan Documents to the extent that such Agent is not reimbursed for such expenses by the Borrowers. The provisions of this section shall survive the termination of this Agreement and the payment of the Obligations. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either any Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the BorrowerParent. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrowerapproval of the Parent, which shall not be unreasonably withheld, conditioned or delayed, and shall not be required during the existence of an Event of Default, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 and the Issuing Lenders, appoint a successor Agent which shall be a bank with an office in (a) New York, New York, if such successor bank is the US Administrative Agent, (b) London, England, if such successor bank is the Euro Administrative Agent or (c) Toronto, Canada, if such successor bank is the Canadian Administrative Agent, or, in each case, an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Borrowers and such successor. After such an Agent’s resignation hereunder, the provisions of this Article ARTICLE III and Section 8.03 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 an 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 any Loan Documentthis Agreement, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase is hereby appointed to act as Administrative Agent, CMIL is hereby appointed to act as 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 appoints each of authorizes the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent Agents to take such actions on its behalf of such Lender or assignee and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, With respect to the extent required under the laws of any jurisdictionLoans made by it hereunder, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute in its individual capacity and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks serving not 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 the Agents and its their Affiliates in their respective individual capacities may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan DocumentsAgent. 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) the Agents no Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents no Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documents, the Agents no Agent shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks institution serving as Agents Agent or any of their respective 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each No Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the a Borrower or a Lender, and the Agents no Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementthe Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any the Loan Document Documents or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein or in any other Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each of the Agents Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 9.03 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either any Agent may resign at any time by notifying the Lenders and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such the Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 an 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, Document or any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, None of the institutions named as Co-Syndication Agents and the or Co-Documentation Agents (each as identified on in the cover page heading of this Agreement)Agreement shall, in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations responsibilities of any kind under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor this Agreement.
Appears in 1 contract
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any Person serving as an Agent 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 an Agent, and such bank Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. 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) the Agents shall not be subject to 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 applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), 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 failure to disclose, any information relating to the Borrower Company or any of its the Subsidiaries that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerCompany), 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 of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 an Agent. 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, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Credit Agreement (Expedia, Inc.)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the entities named as the Administrative Agent and the Collateral London Agent in the heading of this Agreement, and this successors in such capacities, to serve as its agent the Administrative Agent and the London Agent, respectively, under the Loan Documents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any Person serving as an 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 an Agent, and such bank Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower Parent or any Subsidiary or other Affiliate thereof as if it such Person were not an Agent under hereunder and without any duty to account therefor to the Loan DocumentsLenders or the Issuing Banks. 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) the Agents shall not be subject to 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 to exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the applicable Agent is Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.02) or9.02); provided that no Agent shall be required to take any action that, in the case of the Collateral Documentsits opinion, the Required Secured Partiescould expose such Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Parent or any of its Subsidiaries Subsidiary or other Affiliate thereof that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct, as determined by a court of competent jurisdiction by a final and nonappealable judgment. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Parent or a Lender, and the Agents no Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan DocumentDocument or the occurrence of any Default, (iv) the sufficiency, 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, or satisfaction of any condition that expressly refers to the applicable matters described therein being acceptable or satisfactory to such Agent. Notwithstanding anything herein to the contrary, the Agents shall not have any liability arising from any confirmation of any Revolving Credit Exposure or the component amounts thereof or any determination of the Exchange Rate, the LC Exchange Rate or the US Dollar Equivalent. Each Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (including, if applicable, a Financial Officer). Each of the Agents Agent also may rely rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper PersonPerson (including, and shall not incur any liability for relying thereonif applicable, a Financial Officer). Each Agent may consult with legal counsel (who may be counsel for the any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents Agent may perform any of and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agentit. Each of the Agents Agent and any such sub-agent may perform any of and all of its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs this Article shall apply to any such sub-agent and to the Related Parties of 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 an the Administrative Agent or the London Agent, as applicable. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerParent. Upon receipt of any such notice of resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerParent, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Borrowers and such successor. After such an Agent’s resignation hereunderhereunder and under the other Loan Documents, the provisions of this Article and Section 8.03 9.03 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 an Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Agents either Agent, any Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Agents either Agent, any Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Each Lender and Joint BookrunnersIssuing Bank, by delivering its signature page to this Agreement and, in the case of any Lender, funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption or an Issuing Bank Agreement pursuant to which it shall become a Lender or an Issuing Bank, as the case may be, 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 Co-Syndication Agents and Administrative Agent or the Co-Documentation Agents (each as identified Lenders on the cover page of this Agreement)Closing Date or the Effective Date. Notwithstanding anything herein to the contrary, in their capacities as suchno Arranger, Syndication Agent or Documentation Agent shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or any an Issuing Bank), but all such Persons shall have the benefit of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable expense reimbursement and indemnities to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementextent provided for hereunder.
Appears in 1 contract
Sources: Credit Agreement (TripAdvisor, Inc.)
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such each Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any person 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 the Borrower or GrafTech, Global, a Borrower, any Subsidiary or other any Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. 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) the Agents shall not be subject to 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 applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties10.02), 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 failure to disclose, any information relating to the GrafTech, Global, a Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks any bank serving as Agents Agent or any of their respective its Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.0210.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Agents by the GrafTech, Global, a Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV V or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent The Agents 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 them to be genuine and to have been signed or sent by the proper Personperson. Each of the The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Personperson, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for the Borrowera Borrower or GrafTech), independent accountants and other experts selected by itthem, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each of the The Agents may perform any and all of its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such Agentthem. Each of the The Agents and any such sub-agent may perform any and all of its their duties and exercise its their 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 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 an Agent. Subject to the appointment and acceptance of a successor to an Agent as provided in this paragraph, either such Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowerBorrowers. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with with, if no Default or Event of Default shall have occurred and be continuing, the Borrowerconsent of the Borrowers (not to be unreasonably withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring resigning Agent gives notice of its resignation, then the retiring resigning Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor 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 an Agent hereunder by a successorpredecessor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring resigning Agent, and the retiring resigning Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Borrowers and such successor. After such any Agent’s resignation hereunder, the provisions of this Article and Section 8.03 10.03 shall continue in effect for the benefit of such retiring resigning 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 an 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as Lenders identified on the cover page of this Agreement), in their capacities Agreement as such, the “Co-Syndication Agents” and the Lender identified on the cover of this Agreement as the “Documentation Agent” shall have no rightsright, powerspower, dutiesobligation, liabilitiesliability, fiduciary relationships responsibility or obligations duty under any Loan Document or any of the this Agreement other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including than those terms thereof applicable to all Lenders as such. Without limiting the Collateral Agent and the provisions thereof authorizing the Required Secured Parties foregoing, such Lenders shall not have or be deemed to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release have a fiduciary relationship with any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementother Lender.
Appears in 1 contract
The Agents. Each of the Lenders and each Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. 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) the Agents shall not be subject to 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 applicable 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 8.028.02 or Section 8.02A) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective 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 under the circumstances as provided in Section 8.028.02 or Section 8.02A) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificatecertificate (including any Borrowing Base Certificate), report or other document delivered hereunder or in connection with any Loan Document, (iii) qualification of (or lapse of any qualification of) any Account, Credit Card Receivable, Inventory or real property under the eligibility criteria set forth herein, other than eligibility criteria expressly referring to the matters described therein being acceptable or satisfactory to, or being determined by, the Collateral Agent, (iv) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (ivv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Agent. Notwithstanding anything herein to the contrary, the Agents shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrowers, any Lender or any Issuing Bank as a result of, any such determination of the Credit Exposure, Excess Availability, the Borrowing Base or the component amounts of any thereof. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificatecertificate (including any Borrowing Base Certificate), consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerCompany), 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 Lender and Issuing Bank hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of any Agent; (b) the Agents (i) make no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to any Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and any Person performing any field examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel, and that the Agents undertake no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use and not share any Report with any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend and hold the Agents, each other Person preparing a Report and the Related Parties of any of the foregoing harmless from and against, the claims, actions, proceedings, damages, costs, expenses and other amounts (including reasonable attorney fees) incurred by any of them as the direct or indirect result of any third parties who obtain all or part of any Report through the indemnifying Lender. Each of the Agents 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 of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. In addition, if either Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and such 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 no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documents. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement) (each of the foregoing, in its capacity as such, a “Titled Person”), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to (i) release any Lien Liens on any Non-ABL Priority Collateral in accordance with an Intercreditor Agreement and (ii) release any Liens on any Collateral in accordance with the Collateral Documents, including any Liens on real property following the delivery of a Real Property Exclusion Notice. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (gb)(ix) or (b)(x) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement. It is understood and agreed by the parties hereto, that as part of its duties and functions, the Collateral Agent shall serve as the hypothecary representative for itself and for all present and future Secured Parties, as contemplated by Article 2692 of the Civil Code of Québec (the “CCQ”). For greater certainty, and without limiting the powers of the Collateral Agent, each of the Lenders and the Issuing Banks hereby irrevocably appoints the Collateral Agent as hypothecary representative for all present and future Lenders, Issuing Banks and any other Secured Parties as contemplated under Article 2692 of the CCQ in order to hold the hypothecs granted under any Loan Document pursuant to the laws of the Province of Quebec to secure performance of all or part of the Obligations (as defined in each such Loan Document) and to exercise such powers and duties which are conferred upon the hypothecary representative thereunder. The appointment of the Collateral Agent as hypothecary representative shall be deemed to have been ratified and confirmed by each Person that accedes or has acceded to this Agreement as a Lender or Issuing Bank after the date hereof. The Loan Parties hereby acknowledge the appointment of the Collateral Agent as the hypothecary representative of the Secured Parties as contemplated under Article 2692 of the CCQ. In the event of the resignation of the Collateral Agent and appointment of a successor Collateral Agent, such successor Collateral Agent shall also act as hypothecary representative without further act or formality being required to appoint such successor Collateral Agent as the successor hypothecary representative for the purposes of any then existing deeds of hypothec. The execution by the Collateral Agent as the hypothecary representative of the relevant deeds of hypothec or other relevant documentation prior to the date hereof is hereby ratified and confirmed by each Lender and Issuing Bank. In its capacity of hypothecary representative, the Collateral Agent shall (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted hereunder, all rights and remedies given to the hypothecary representative pursuant to any hypothec, applicable law 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 and the Issuing Banks, and (c) be entitled to delegate from time to time any of its powers or duties under any deed of hypothec or other Loan Document, on such terms and conditions as it may determine from time to time.
Appears in 1 contract
Sources: Revolving Credit Agreement (Victoria's Secret & Co.)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the entities named as the Administrative Agent and the Collateral London Agent in the heading of this Agreement to serve as its agent the Administrative Agent and the London Agent, respectively, under the Loan Documents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any Person serving as an 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 an Agent, and such bank Person and its Affiliates may accept deposits from, lend money to to, act as the financial adviser or in any other advisory capacity for and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it such Person were not an Agent under hereunder and without any duty to account therefor to the Loan DocumentsLenders or the Issuing Banks. 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) the Agents shall not be subject to 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 to exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the applicable Agent is Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.02) or9.02); provided that no Agent shall be required to take any action that, in the case of the Collateral Documentsits opinion, the Required Secured Partiescould expose such Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries Subsidiary or other Affiliate thereof that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan DocumentDocument 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, or satisfaction of any condition that expressly refers to the applicable matters described therein being acceptable or satisfactory to such Agent. Notwithstanding anything herein to the contrary, the Agents shall not have any liability arising from any confirmation of any Revolving Credit Exposure or the component amounts thereof. Each Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (including, if applicable, a Financial Officer). Each of the Agents Agent also may rely rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper PersonPerson (including, and shall not incur any liability for relying thereonif applicable, a Financial Officer). Each Agent may consult with legal counsel (who may be counsel for the any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents Agent may perform any of and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agentit. Each of the Agents Agent and any such sub-agent may perform any of and all of its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs this Article shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities facility provided for herein as well as activities as an the Administrative Agent or the London Agent, as applicable. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerCompany. Upon receipt of any such notice of resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s resignation hereunderhereunder and under the other Loan Documents, the provisions of this Article and Section 8.03 9.03 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 an Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Agents either Agent, any Arranger 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 either Agent, any Arranger 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, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Each Lender and Joint BookrunnersIssuing Bank, by delivering its signature page to this Agreement, or delivering its signature page to an Assignment and Assumption or an Issuing Bank Agreement pursuant to which it shall become a Lender or an Issuing Bank, as the case may be, 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 Co-Administrative Agent or the Lenders on or prior to the Restatement Effective Date. Notwithstanding anything herein to the contrary, no Arranger, Co- Syndication Agents and the Co-Agent or Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, Agent shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or any an Issuing Bank), but all such Persons shall have the benefit of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable expense reimbursement and indemnities to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementextent provided for hereunder.
Appears in 1 contract
Sources: Credit Agreement (Expedia, Inc.)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks The bank serving as an 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 an 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 an the Administrative Agent under the Loan Documentshereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, foregoing (a) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (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 applicable Agent is required permitted hereunder unless requested to exercise do so 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective Affiliates in any capacityLenders. 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 under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a LenderIn addition, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent The Agents 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 43 39 to be genuine and to have been signed or sent by the proper Person. Each of the The Agents 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. Each Agent of the Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of The Administrative Agent, the Agents CAF Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related PartiesAffiliates or its or its Affiliates' employees. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and agent, to the Related Parties Affiliates of each the Administrative Agent, the CAF Agent and any such sub-agentagent and to the directors, officers, employees, agents and shall apply to advisors of the Administrative Agent, the CAF Agent, any such sub-agent and their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an AgentAffiliates. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders (orLenders, in with the case consent of the Collateral Agent, the Required Secured PartiesBorrower (which shall not be unreasonably withheld) shall have the right, in consultation with the Borrower, right to appoint a successorsuccessor Agent. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, with the consent of the Borrower (which shall not be unreasonably withheld), on behalf of the Lenders, appoint a successor Agent which shall be a bank with an office in The City of New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successorhereunder. After such the Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the its 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 it while it was acting as an Agent. Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share at the time reimbursement is sought (based on its Commitment hereunder or, if the Commitments shall have expired or terminated, based on its portion of the total Revolving Credit Exposures and outstanding Competitive Loans) of any expenses incurred for the benefit of the Lenders by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Borrower and (b) 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 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 action taken or omitted by it or any of them under this Agreement, to the extent the same shall not have been reimbursed by the Borrower, provided that no Lender shall be liable to any Agent or any such other indemnified person for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined by a court of competent jurisdiction by final and nonappealable judgment to have 44 40 resulted from the gross negligence or wilful misconduct of such Agent or any of its directors, officers, employees or 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 any Loan Documentthis Agreement, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Credit Agreement (Belo a H Corp)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks The bank serving as an 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 an 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 an the Administrative Agent under the Loan Documentshereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, foregoing (a) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (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 applicable Agent is required permitted hereunder unless requested to exercise do so 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective Affiliates in any capacityLenders. 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 under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a LenderIn addition, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent The Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the The Agents 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. Each Agent of the Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by 48 44 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 of the Agents 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 of The Administrative Agent, the Agents CAF Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related PartiesAffiliates or its or its Affiliates' employees. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and agent, to the Related Parties Affiliates of each the Administrative Agent, the CAF Agent and any such sub-agentagent and to the directors, officers, employees, agents and shall apply to advisors of the Administrative Agent, the CAF Agent, any such sub-agent and their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an AgentAffiliates. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders (orLenders, in with the case consent of the Collateral Agent, the Required Secured PartiesBorrower (which shall not be unreasonably withheld) shall have the right, in consultation with the Borrower, right to appoint a successorsuccessor Agent. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, with the consent of the Borrower (which shall not be unreasonably withheld), on behalf of the Lenders, appoint a successor Agent which shall be a bank with an office in Dallas or The City of New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successorhereunder. After such the Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the its 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 it while it was acting as an Agent. Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share at the time reimbursement is sought (based on its Commitment hereunder or, if the Commitments shall have expired or terminated, based on its portion of the total Revolving Credit Exposures and outstanding Competitive Loans) of any expenses incurred for the benefit of the Lenders by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Borrower and (b) 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 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 action taken or omitted by it or any of them under this Agreement, to the extent the same shall not have been reimbursed by the Borrower, provided that no Lender shall be liable to any Agent or any such other indemnified 49 45 person for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of such Agent or any of its directors, officers, employees or 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 any Loan Documentthis Agreement, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Credit Agreement (Belo a H Corp)
The Agents. Each (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, Chase is hereby appointed as Administrative Agent and FTX Collateral Agent for the Banks under this Agreement and the FTX Security Agreement and as Documentation Agent for the Banks under this Agreement. None of the Lenders Agents shall have any duties or responsibilities with respect hereto except those expressly set forth herein. Each Bank, and each subsequent holder of any Promissory Note by its acceptance thereof, hereby irrevocably appoints each of and expressly authorizes the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf and to exercise such powers under this Agreement as are specifically delegated to such Agent Person by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. In additionThe Administrative Agent is hereby expressly authorized by the Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Banks all payments of principal of and interest on the Loans and all other amounts due to the extent required under the laws Banks hereunder, and promptly to distribute to each Bank its proper share of any jurisdiction, each payment so received; (b) to give notice on behalf of each of the Lenders hereby grants Banks to the Collateral Borrower of any Event of Default specified in this Agreement of which the Administrative Agent any required powers has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Bank copies of attorney to execute all notices, financial statements and enforce any Collateral Document governed other materials delivered by the laws of such jurisdiction on such Lender’s behalf. Each of Borrower pursuant to this Agreement as received by the banks 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 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 an Agent under the Loan Documents. 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, the FTX Collateral Agent is hereby expressly authorized to execute any and all documents (aincluding releases) with respect to the collateral for the Loans and the rights of the secured parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the FTX Security Agreement. Each of the Agents shall not be subject may exercise any of its duties hereunder by or through their respective agents, officers or employees. In addition, each Bank hereby irrevocably authorizes and directs the Administrative Agent and the FTX Collateral Agent to any fiduciary or other implied dutiesenter, regardless on behalf of whether a Default has occurred each of them, into the respective Intercreditor Agreement and is continuing, the FTX Security Agreement as contemplated pursuant to this Agreement.
(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 applicable Agent is required to exercise in writing by the Required Lenders (or such other number or percentage None of the Lenders as shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective Affiliates in any capacity. No Agent directors, officers, agents or employees shall be liable as such for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 an Agent. Each Lender acknowledges that it hasexcept for its or his own gross negligence or wilful misconduct, independently and without reliance upon or be responsible for any statement, warranty or representation herein or the Agents 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 Borrower or any other Lender and based on such documents and information as it has deemed appropriateparty of any of the terms, made its own credit analysis and decision conditions, covenants or agreements contained in any Loan Document. The Agents shall not be responsible to enter into the Banks or the holders of the Promissory Notes for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents Promissory Notes or any other Lender Loan Documents or other instruments or agreements. The Administrative Agent may deem and based on such documents and information treat the payee of any Promissory Note as the owner thereof for all purposes hereof until it shall have received from time to time deem appropriatethe payee of such Promissory Note notice, continue to make its own decisions in taking or not taking action under or based upon any Loan Documentgiven as provided herein, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms transfer thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance compliance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement9.
Appears in 1 contract
Sources: Credit Agreement (Fm Properties Inc)
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to such the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In additionFor purposes of this Article VIII, all references to the extent required under Administrative Agent shall be deemed to be references to both the laws of any jurisdiction, each of the Lenders hereby grants to Administrative Agent and the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalfAgent. Each of the banks The bank serving as an 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 an 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 an the Administrative Agent under the Loan Documentshereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents 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 Agents Administrative Agent 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 applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.022.05(j) or, in the case of the Collateral Documents, the Required Secured Partiesand Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Agents Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Administrative Agent or any of their respective its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower or a Lender, and the Agents Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. Each of the Agents The Administrative Agent and any such sub-agent subagent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent subagent and to the Related Parties of each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either The Administrative Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successorsuccessor who shall either be (i) a “U.S. person” and a “financial institution” within the meaning of United States Treasury Regulations Section 1.1441-1 or (ii) a U.S. branch of a non-U.S. financial institution that has agreed to be treated as a “United States person” within the meaning of Section 7701(a)(30) of the Code. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Bank, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. 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 such the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents Administrative Agent, any Arranger or any other Lender and any of their respective Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents Administrative Agent, any Arranger or any other Lender and any of their respective Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Each Lender irrevocably agrees that the Administrative Agent may enter into any and Joint Bookrunners, the Co-Syndication Agents all documents with respect to Collateral and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any rights of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments with respect thereto (including any First Lien Intercreditor Agreement or modifications thereto or waivers thereofJunior Lien Intercreditor Agreement, if applicable, and any release pursuant to control remedies thereunder, Section 9.15 hereof) as contemplated by and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementthis Agreement and the Security Documents without any further consent from any Secured Party and bind the Secured Parties thereby, which terms shall be reasonably satisfactory to Administrative Agent. No Person named as an Arranger, bookrunner, Co-Syndication Agent or Co-Documentation Agent in this Agreement shall have any liability under this Agreement or any other Loan Document in its capacity as such.
Appears in 1 contract
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes (i) the Collateral Agent to sign and deliver the Security Documents and (ii) each such Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws Table of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Contents Any 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 the Borrower any Wireline Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. No Agent under the Loan Documents. 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) the Agents no Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents no Agent 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 hereby that the applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documents, the Agents no Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries Wireline Company that is communicated to or obtained by the banks bank serving as Agents an Agent or any of their respective 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each No Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents no Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrowerany Wireline Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 an 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 any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Credit Agreement (Windstream Corp)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to Without limiting the extent required under the laws of any jurisdiction, each generality of the Lenders foregoing, the Agents are hereby grants expressly authorized to execute any and all documents (including releases) with respect to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each rights of the banks Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents. Any Person 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 Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Holdings or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. The Agents Neither Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents neither Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents neither Agent 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 hereby that the applicable such Agent is required instructed in writing 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.08), and (c) except as expressly set forth in the Loan Documents, the Agents neither Agent shall not have any duty to disclose, and nor shall not it be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Administrative Agent and/or Collateral Agent or any of their respective its Affiliates in any capacity. No Neither 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 under the circumstances as provided in Section 8.029.08) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each Neither Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by Holdings, the Borrower or a Lender, and the Agents neither Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document 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. To the extent required by any applicable Agentlaw, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender 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 or for any other reason, 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 penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred. 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 or sent by the proper Person. Each of the Agents Agent may also may rely upon any statement made to it orally or by telephone and believed by it to be have been made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 Credit Facilities as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either Agent (i) may resign at any time by notifying the Lenders and the BorrowerBorrower and (ii) may be removed by the Borrower by written notice to such Agent and the Lenders in the event that such Agent becomes the subject of an Insolvency Proceeding. Upon any such resignationresignation or removal, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation and (except during the continuance of an Event of Default) with the prior approval of the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignationresignation or within 60 days after the Borrower gives notice of removal as the case may be, then then, in the case of a retiring agent, the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank and (except during the continuance of an Event of Default) shall be acceptable to the Borrower, and, in the case of a removed Agent, the Borrower may, on behalf of the Lenders and the Issuing Bank, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank, which appointment shall be subject to approval by the Required Lenders. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent, and the retiring or removed Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such an Agent’s resignation or removal hereunder, the provisions of this Article and Section 8.03 9.05 shall continue in effect for the benefit of such retiring or removed 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 an 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, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Credit Agreement (Tronox Inc)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent them by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to The provisions of this Section 8.01 (other than as expressly provided herein) are solely for the extent required under benefit of the laws Agents and the Lenders and no Loan Party shall have any rights as a third-party beneficiary of any jurisdictionof the provisions of this Section 8.01 (other than as expressly provided herein). Notwithstanding any other provision of this Agreement or any provision of any other Loan Document, each of the Lenders hereby grants Joint Lead Arrangers, the Syndication Agents, and the Joint Bookrunners are named as such for recognition purposes only, and in their respective capacities as such shall have no duties, responsibilities or liabilities with respect to this Agreement or any other Loan Document; it being understood and agreed that each of the Collateral Agent any required powers Joint Lead Arrangers, the Syndication Agents and the Joint Bookrunners shall be entitled to all indemnification and reimbursement rights in favor of attorney to execute the Agents provided herein and enforce any Collateral Document governed by in the laws other Loan Documents and all of such jurisdiction on such Lender’s behalfthe other benefits of this Section 8.01. Each of the banks Syndication Agents and the Joint Lead Arrangers and the Joint Bookrunners, 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. Without limitation of the foregoing, neither the Joint Lead Arrangers, the Syndication Agents nor the Joint Bookrunners in their respective capacities as such shall, by reason of this Agreement or any other Loan Document, have any fiduciary relationship in respect of any Lender, Loan Party or any other Person. The bank serving as an the Administrative Agent hereunder and Collateral 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 the Administrative Agent or Collateral 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 an the Administrative Agent under the Loan Documentsor Collateral 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) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents neither Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights powers unless and powers expressly contemplated by the Loan Documents that the applicable until such Agent is required to exercise in writing by shall have received instructions from the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances circumstances, as provided in Section 8.029.02) orand, upon receipt of such instructions from Required Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions and shall not be required to take any action that, in its opinion or the case opinion of the Collateral Documentsits counsel, the Required Secured Partiesmay expose such Agent to liability or that is contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Administrative Agent and Collateral Agent or any of their respective its Affiliates in any capacity. No Neither Agent shall be liable for any action taken or not taken by it (i) under or in connection with any Loan Document or (ii) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconductmisconduct (as determined by a final non-appealable judgment of a court of competent jurisdiction). Each Neither Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents neither Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent The Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent the Agents 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 and Collateral Agent. All of the rights, benefits, and privileges (including the exculpatory and indemnification provisions) of this paragraph and of Section 9.03 shall apply to any such sub-agent and to the Related Parties of any such sub-agent, and shall apply to their respective activities as sub-agent as if such sub-agent and Related Parties were named herein. Notwithstanding anything herein to the contrary, with respect to each such sub-agent appointed by an Agent. Subject , (i) such sub-agent shall be a third-party beneficiary under this Agreement with respect to all such rights, benefits and privileges (including exculpatory rights and rights to indemnification) and shall have all of the rights and benefits of a third-party beneficiary, including an independent right of action to enforce such rights, benefits and privileges (including exculpatory rights and rights to indemnification) directly, without the consent or joinder of any other Person, against any or all of Loan Parties and the Lenders, (ii) such rights, benefits and privileges (including exculpatory rights and rights to indemnification) of such sub-agent shall not be modified or amended without the consent of such sub-agent, and (iii) such sub-agent shall only have obligations to the appointment Administrative Agent and acceptance not to any Loan Party, Lender or any other Person and no Loan Party, Lender or any other Person shall have any rights, directly or indirectly, as a third-party beneficiary or otherwise, against such sub-agent. Each Lender, in proportion to its Applicable Aggregate Percentage, severally agrees to indemnify each Agent, Issuing Bank and Swingline Lender, to the extent that such Agent, Issuing Bank or Swingline Lender shall not have been reimbursed by any Loan Party (and without limiting its obligation to do so), for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Agent, Issuing Bank or Swingline Lender in exercising its powers, rights and remedies or performing its duties hereunder or under the other Loan Documents or otherwise in its capacity as such Agent in any way relating to or arising out of this Agreement or the other Loan Documents; provided, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s, Issuing Bank’s Swingline Lender’s, as applicable gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a successor court of competent jurisdiction. If any indemnity furnished to any Agent, Issuing Bank or Swingline Lender, for any purpose shall, in the opinion of such Agent, Issuing Bank or Swingline Lender, as applicable, be insufficient or become impaired, such Agent, Issuing Bank or Swingline Lender, as applicable, may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided, that in no event shall this sentence require any Lender to indemnify any Agent, Issuing Bank or Swingline Lender against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s Applicable Aggregate Revolving Percentage thereof; and provided, further, that this sentence shall not be deemed to require any Lender to indemnify any Agent, Issuing Bank or Swingline Lender against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence. The Administrative Agent as provided in this paragraph, either Agent may shall have the right to resign at any time by notifying giving prior written notice thereof to the Lenders and the Borrower. The Administrative Agent shall have the right to appoint a financial institution to act as the Administrative Agent and/or the Collateral Agent hereunder, subject to the reasonable satisfaction of the Borrower and the Required ▇▇▇▇▇▇▇, and the Administrative Agent’s resignation shall become effective on the earlier of (i) the acceptance of such successor Administrative Agent by the Borrower and the Required Lenders or (ii) the thirtieth day after such notice of resignation. Upon any such notice of resignation, if a successor Administrative Agent has not already been appointed by the retiring Administrative Agent, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with upon 5 Business Days’ notice to the Borrower, to appoint a successorsuccessor Administrative Agent subject to the reasonable satisfaction of the Borrower. If no neither the Required ▇▇▇▇▇▇▇ nor the Administrative Agent have appointed a successor Administrative Agent, then the Required ▇▇▇▇▇▇▇ shall be deemed to have been succeeded to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent; provided, that until a successor Administrative Agent is so appointed by the Required Lenders (or, in or the case of the Collateral Administrative Agent, the Administrative Agent, by notice to the Borrower and Required Secured Parties) 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 may retain its role as the Collateral Agent which shall be a bank with an office in New York, New York, or an Affiliate of under any such bankSecurity Document. Upon the acceptance of its any appointment as an the Administrative Agent hereunder by a successorsuccessor Administrative Agent, such that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, the Administrative Agent and the retiring the Administrative Agent shall promptly (i) transfer to such successor Administrative Agent all sums, securities and other items of Collateral held under the Security Documents, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Administrative Agent under the Loan Documents, and (ii) execute and deliver to such successor Administrative Agent such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Administrative Agent of the security interests created under the Security Documents, whereupon such retiring the Administrative Agent shall be discharged from its duties and obligations under hereunder. Except as provided above, any resignation of Truist Bank or its successor as Administrative Agent pursuant to this Section 8.01 shall also constitute the Loan Documentsresignation of Truist Bank or its successor as the Collateral Agent. The fees payable by After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the Borrower to a successor Agent provisions of this Section 8.01 shall be the same as those payable inure to its predecessor unless otherwise agreed between benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent hereunder. Any successor Administrative Agent appointed pursuant to this paragraph shall, upon its acceptance of such appointment, become the successor Collateral Agent for all purposes hereunder. If Truist Bank or its successor as Administrative Agent pursuant to this paragraph has resigned as Administrative Agent but retained its role as Collateral Agent and no successor Collateral Agent has become the Collateral Agent pursuant to the immediately preceding sentence, Truist Bank or its successor may resign as Collateral Agent upon notice to the Borrower and such successorRequired Lenders at any time. After such any retiring Agent’s resignation hereunderhereunder and under the other Loan Documents, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties that at any time acted as a sub-agent in respect of any actions taken or omitted to be taken by any of them while it the retiring Agent was acting as an Agent. Each In no event shall a Disqualified Institution be appointed an Agent hereunder. Any resignation of Truist Bank or its successor as the Administrative Agent pursuant to the preceding paragraph shall also constitute the resignation of Truist Bank or its successor as the Swingline Lender, and any successor Administrative Agent appointed pursuant to this Section 8.01 shall, upon its acceptance of such appointment, become the successor Swingline Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on for all purposes hereunder. In 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 any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby event (a) agrees to be bound the Borrower shall prepay any outstanding Swingline Loans made by the provisions retiring Administrative Agent in its capacity as Swingline Lender, (b) upon such prepayment, the retiring Administrative Agent and Swingline Lender shall surrender any Note for the Swingline Loan held by it to the Borrower for cancellation and (c) the Borrower shall issue, if so requested by the successor Administrative Agent and the Swingline Lender, a new Note for the Swingline Loan to the successor Administrative Agent and the Swingline Lender, in the principal amount of the Collateral DocumentsSwingline Loan then in effect and with other appropriate insertions. In addition to the foregoing, including those terms thereof applicable to the Collateral Agent may resign at any time by giving 30 days’ prior written notice thereof to Lenders and the provisions thereof authorizing Loan Parties. The Administrative Agent shall have the right to appoint a financial institution as Collateral Agent hereunder, subject to the reasonable satisfaction of the Borrower and the Required Secured Parties to approve amendments Lenders and the Collateral Agent’s resignation shall become effective on the earlier of (a) the acceptance of such successor Collateral Agent by the Borrower and the Required Lenders or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the thirtieth day after such notice of resignation. Upon any such notice of resignation, the Required Lenders shall have the right, upon 5 Business Days’ notice to the Administrative Agent, to appoint a successor Collateral Agent. Upon the acceptance of any appointment as Collateral Agent to release any Lien on any hereunder by a successor Collateral in accordance with Agent, the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the successor Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.shall thereupon succeed t
Appears in 1 contract
The Agents. Each of the Lenders and Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. 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) the Agents shall not be subject to 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 applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), 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 failure to disclose, any information relating to the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection with any Loan Documentherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 9.03 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. Any Person 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 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 an Agent hereunder. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of a resignation by the Collateral Administrative Agent, ) or the Required Secured PartiesAdministrative Agent (in the case of a resignation by the London Agent) shall have the right, in consultation with the Borrower, ’s approval (so long as no Event of Default has occurred and is continuing) to appoint a successor. If no successor Agent shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 an Agent. 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, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The parties agree that none of the Joint Lead Arrangers and Joint Bookrunners, Bookrunners or the Co-Syndication Agents and the Co-Documentation Agents (each as identified Agent referred to on the cover page of this Agreement)Agreement shall, in their capacities its capacity as such, shall have no rights, any powers, duties, liabilities, fiduciary relationships duties or obligations responsibilities under any Loan Document this Agreement or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementLoan Document.
Appears in 1 contract
Sources: Credit Agreement (Broadridge Financial Solutions, Inc.)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent (for purposes of this Article, the Administrative Agent and the Collateral Agent are referred to collectively as the “Agents”) its agent and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to Without limiting the extent required under the laws of any jurisdiction, each generality of the Lenders foregoing, the Agents are hereby grants expressly authorized to execute any and all documents (including releases) with respect to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each rights of the banks Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Collateral Documents. The bank serving as an the Administrative Agent and/or the Collateral 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 the Borrower or any Subsidiary Credit Party or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. The Agents Neither Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents neither Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents neither Agent 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 hereby that the applicable such Agent is required instructed in writing 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.08), and (c) except as expressly set forth in the Loan Documents, the Agents neither Agent shall not have any duty to disclose, and nor shall not it be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries Credit Party that is communicated to or obtained by the banks bank serving as Agents Administrative Agent and/or Collateral Agent or any of their respective its Affiliates in any capacity. No Neither 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 under the circumstances as provided in Section 8.029.08) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Neither Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower a Credit Party or a Lender, and the Agents neither Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Personperson. Each of the Agents Agent may also may rely upon any statement made to it orally or by telephone and believed by it to be have been made by the proper Personperson, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the BorrowerBorrowers), 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 of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowerBorrowers. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with subject, if no Event of Default shall have occurred and be continuing, to the Borrowerconsent of the Borrowers (not to be unreasonably withheld), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, subject, if no Event of Default shall have occurred and be continuing, to the consent of the Borrowers (not to be unreasonably withheld), on behalf of the LendersLenders and the Issuing Bank, appoint a successor 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Borrowers and such successor. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.05 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 an 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, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Thermadyne Holdings Corp /De)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender▇▇▇▇▇▇’s behalf. Each of the banks 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 the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. 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) the Agents shall not be subject to 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective 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 under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) qualification of (or lapse of any qualification of) any Account, Credit Card Receivable or Inventory under the eligibility criteria set forth herein, other than eligibility criteria expressly referring to the matters described therein being acceptable or satisfactory to, or being determined by, the Collateral Agent, (iv) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (ivv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (vvi) the satisfaction of any condition set forth in Article IV 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerCompany), 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. [[56622096068574]] Each of the Agents 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 of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may ▇▇▇ resign at any time by notifying the Lenders and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrowerconsent of the Company, to appoint a successor. In addition, if either Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and such 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 a Specified Event of Default hereunder, when no consent shall be required), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documents. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement) (each of the foregoing, in its capacity as such, a “Titled Person”), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to (i) release any Lien Liens on any Non-ABL Priority Collateral in accordance with an Intercreditor Agreement and (ii) release any Liens on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an the ABL Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and each other Acceptable Intercreditor Agreement, as applicable, pursuant to Sections 6.01 and 6.02 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Acceptable Intercreditor Agreement.. Notwithstanding anything to the contrary herein, the Arrangers shall not have any right, power, obligation, liability, responsibility or duty under this Agreement, except in their respective capacities, as applicable, as the Administrative Agent or a Lender hereunder. [[56622096068574]] Each Secured Party irrevocably authorizes and instructs the Administrative Agent to, and the Administrative Agent shall, upon request of the Company:
Appears in 1 contract
Sources: First Lien Credit Agreement (Victoria's Secret & Co.)
The Agents. Each of the Lenders and Issuing Banks hereby irrevocably appoints each of the entity named as Administrative Agent or London Agent in the heading of this Agreement and its successors to serve as Administrative Agent or London Agent, respectively, under the Collateral Agent as its agent Loan Documents, and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. 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) the Agents shall not be subject to 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 applicable Agent is Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as an Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.02) or9.02), provided that no Agent shall be required to take any action that, in the case of the Collateral Documentsits opinion, the Required Secured Partiescould expose such 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, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as an Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful misconductmisconduct (as determined by a final, non-appealable judgment of a court of competent jurisdiction). Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection with any Loan Documentherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the sufficiency validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Notwithstanding anything herein to the applicable Agentcontrary, the Agents shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof, any Exchange Rate or any US Dollar Equivalent. 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 9.03 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. Any Person serving as an 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 an 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 it were not an Agent hereunder and without any duty to account therefor to the Lenders or Issuing Banks. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of a resignation by the Collateral Administrative Agent, ) or the Required Secured PartiesAdministrative Agent (in the case of a resignation by the London Agent) shall have the right, in consultation with the Borrower, ’s approval (so long as no Event of Default has occurred and is continuing) to appoint a successor. If no successor Agent shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. If the Person serving as Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Agent and, with the Borrower’s approval, appoint a successor. If no such successor shall have been so appointed and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent, and the retiring or removed Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such an Agent’s resignation or removal hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring or removed 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 an Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Agents either Agent, any Arranger 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 and Issuing Bank also acknowledges that it will, independently and without reliance upon the Agents either Agent, any Arranger or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunnersparties agree that none of the Arrangers, the Co-Syndication Agents and or the Co-Documentation Agents (each as identified referred to on the cover page of this Agreement)Agreement shall, in their capacities its capacity as such, shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations responsibilities under any Loan Document this Agreement or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementLoan Document.
Appears in 1 contract
Sources: Credit Agreement (Broadridge Financial Solutions, Inc.)
The Agents. Each of the Lenders and each Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks serving as an Agent hereunder The Toronto-Dominion Bank and The Chase Manhattan Bank shall have the same rights and powers in its capacity as a Lender hereunder as any other Lender and may exercise the same as though it Toronto Dominion (Texas) Inc. were not an the Administrative Agent and The Chase Manhattan Bank were not the Collateral Agent, and each such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower any Credit Party or any Subsidiary subsidiary or other Affiliate of any thereof as if it were not an such Agent under the Loan Documentshereunder. The Agents Neither Agent shall not have any duties or obligations except those expressly set forth in this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, (a) the Agents neither CREDIT AGREEMENT 103 - 97 - Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents neither Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by this Agreement and the other Loan Documents that the applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured PartiesLenders, and (c) except as expressly set forth herein and in the other Loan Documents, the Agents neither Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower any Credit Party or any of its Subsidiaries respective subsidiaries that is communicated to or obtained by the banks bank serving as Agents such Agent or any of their respective its Affiliates in any capacity. No Neither 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, if provided herein, with the consent or such other number or percentage at the request of the Required Lenders as shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Partiesa particular Class, or in the absence of its own gross negligence or willful wilful misconduct. Each Neither Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Borrower, a Lender or a Lenderthe other Agent, and the Agents neither Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this AgreementAgreement or the other Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or under any of the other Loan Documents or in connection with any Loan Documentherewith of therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or in any other Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any this Agreement, the other Loan Document Documents or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV V or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to such Agent. Neither Agent shall, except to the applicable Agentextent expressly instructed by the Required Lenders with respect to collateral security under the Security Documents, be required to initiate or conduct any litigation or collection proceedings hereunder or under any other Loan Document. 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents Either Agent may perform any and all of its duties duties, and exercise its rights and powers powers, by or through any one or more sub-agents appointed by such Agent. Each of the Agents Either Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each such 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 an such Agent. Subject to the appointment and acceptance of a successor Administrative Agent or Collateral Agent, as the case may be, as provided in this paragraph, either Agent may resign at any time CREDIT AGREEMENT 104 - 98 - by notifying the Lenders Lenders, each Issuing Bank, the Borrower and the Borrowerother Agent. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successorsuccessor Administrative Agent, and the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor Collateral Agent. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the such retiring Agent gives notice of its resignation, then the such retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor Administrative Agent or Collateral Agent, as the case may be, 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 an Administrative Agent or Collateral Agent, as the case may be, by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the such retiring Agent, and the such retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 10.03 shall continue in effect for the its 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 it while it was acting as an Administrative Agent or Collateral Agent, as the case may be. Each Lender acknowledges that it has, independently and without reliance upon the Agents Administrative Agent, the Collateral Agent, any Issuing Bank or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents Administrative Agent, the Collateral Agent, any Issuing Bank or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any this Agreement and the other Loan DocumentDocuments, any related agreement or any document furnished hereunder or thereunder. The Anything herein to the contrary notwithstanding, none of the Joint Book Managers, Co-Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified or Arrangers listed on the cover page of this Agreement)hereof, in their capacities as suchnor the Syndication Agent, shall have no rightsany duties or responsibilities under this Agreement, powersexcept in their capacity, dutiesif any, liabilities, fiduciary relationships as Agents or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementhereunder.
Appears in 1 contract
The Agents. Each of the Lenders and each Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. 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) the Agents shall not be subject to 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 applicable 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 8.028.02 or Section 8.02A) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective 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 under the circumstances as provided in Section 8.028.02 or Section 8.02A) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificatecertificate (including any Borrowing Base Certificate), report or other document delivered hereunder or in connection with any Loan Document, (iii) qualification of (or lapse of any qualification of) any Account, Credit Card Receivable, Inventory or real property under the eligibility criteria set forth herein, other than eligibility criteria expressly referring to the matters described therein being acceptable or satisfactory to, or being determined by, the Collateral Agent, (iv) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (ivv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Agent. Notwithstanding anything herein to the contrary, the Agents shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrowers, any Lender or any Issuing Bank as a result of, any such determination of the Credit Exposure, Excess Availability, the Borrowing Base or the component amounts of any thereof. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificatecertificate (including any Borrowing Base Certificate), consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerCompany), 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 Lender and Issuing Bank hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of any Agent; (b) the Agents (i) make no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to any Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and any Person performing any field examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel, and that the Agents undertake no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use and not share any Report with any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend and hold the Agents, each other Person preparing a Report and the Related Parties of any of the foregoing harmless from and against, the claims, actions, proceedings, damages, costs, expenses and other amounts (including reasonable attorney fees) incurred by any of them as the direct or indirect result of any third parties who obtain all or part of any Report through the indemnifying Lender. Each of the Agents 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 of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. In addition, if either Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and such 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 no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documents. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement) (each of the foregoing, in its capacity as such, a “Titled Person”), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to (i) release any Lien Liens on any Non-ABL Priority Collateral in accordance with an Intercreditor Agreement and (ii) release any Liens on any Collateral in accordance with the Collateral Documents, including any Liens on real property following the delivery of a Real Property Exclusion Notice. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (ga)(viii), (a)(ix), (a)(x), (b)(ix), (b)(x) of Section 5.08 and or (bb)(xi) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.of
Appears in 1 contract
Sources: Amendment and Restatement Agreement (L Brands, Inc.)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the entities named as the Administrative Agent and the Collateral London Agent in the heading of this Agreement, and their successors in such capacities, to serve as its agent the Administrative Agent and the London Agent, respectively, under the Loan Documents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any Person serving as an 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 an Agent, and such bank Person and its 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 Borrower Parent or any Subsidiary or other Affiliate thereof as if it such Person were not an Agent under hereunder and without any duty to account therefor to the Loan DocumentsLenders or the Issuing Banks. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents, and their duties hereunder and under the other Loan Documents shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuingcontinuing (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Agents is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) the Agents shall not 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 applicable Agent is Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.02) or9.02); provided that no Agent shall be required to take any action that, in the case of the Collateral Documentsits opinion, the Required Secured Partiescould expose such Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Parent or any of its Subsidiaries Subsidiary or other Affiliate thereof that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful misconductmisconduct (such absence to be presumed for purposes of this Article VIII unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to such Agent by the Borrower Parent or a Lender, and the Agents no Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, including any representation by any Incremental Lender in any Incremental Facility Agreement (it being understood and agreed that each Agent may rely, and shall incur no liability for relying, upon such representation), (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan DocumentDocument or the occurrence of any Default, (iv) the sufficiency, 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, or satisfaction of any condition that expressly refers to the applicable matters described therein being acceptable or satisfactory to such Agent. Notwithstanding anything herein to the contrary, the Agents shall not have any liability arising from any confirmation of any Revolving Credit Exposure or the component amounts thereof, any determination of the Exchange Rate, the LC Exchange Rate or the US Dollar Equivalent or any determination of any rate that reflects the costs to any Lenders of making or maintaining any Loans as contemplated by Section 2.14. Each Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (including, if applicable, a Financial Officer). Each of the Agents Agent also may rely rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper PersonPerson (including, if applicable, a Financial Officer), and may act upon any such statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, amendment, extension or renewal 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 not incur any liability for relying thereonhave received notice to the contrary from such Lender or such Issuing Bank sufficiently in advance to the making of such Loan or the issuance, amendment, extension or renewal of such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for the any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents Agent may perform any of and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agentit. Each of the Agents Agent and any such sub-agent may perform any of and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs this Article shall apply to any such sub-agent and to the Related Parties of 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 an the Administrative Agent or the London Agent, as applicable. No Agent shall be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. Subject to the appointment and acceptance terms of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerParent. Upon receipt of any such notice of resignation, the Required Lenders (or, in the case of a resignation of the Collateral Administrative Agent, ) or the Required Secured PartiesAdministrative Agent (in the case of a resignation by the London Agent) shall have the right, in consultation with the BorrowerParent, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. If any Agent shall be a Defaulting Lender pursuant to clause (e) of the definition of such term, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to Parent and such Agent remove such Agent in its capacity as such and, in consultation with Parent, appoint a successor. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent, as the case may be, and the such retiring or removed Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Borrowers and such successor. Notwithstanding the foregoing, in the event (a) no successor Agent to a retiring Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its intent to resign, the retiring Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and Parent or (b) no successor to a removed Agent shall have been so appointed and shall have accepted such appointment by the day that is 30 days following of the issuance of a notice of removal, the removal shall become effective on such 30th day, and on the date of effectiveness of such resignation or removal, as the case may be, (i) the retiring or removed Agent shall be discharged from its duties and obligations hereunder and under the Loan Documents, and (ii) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent; provided that (A) all payments required to be made hereunder or under any other Loan Documents to the retiring or removed Agent for the account of any Person other than such Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the retiring or removed Agent shall also directly be given or made to the other Agent, and each Lender and each Issuing bank. After such an Agent’s resignation hereunderor removal hereunder and under the other Loan Documents, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring or removed 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 an 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 any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby .
(a) agrees to be bound by file and prove a claim for the provisions whole amount of the Collateral Documentsprincipal and interest owing and unpaid in respect of the Loans, including those terms thereof applicable to LC Exposure and all other obligations under the Collateral Agent Loan Documents that are owing and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, unpaid and to control remedies thereunderfile such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and such Agent (including any claim under Sections 2.12, 2.13, 2.15, 2.16, 2.17 and 9.03) allowed in such judicial proceeding; and
(b) irrevocably authorizes to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the Collateral same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each Issuing Bank to make such payments to such Agent and, in the event that such Agent shall consent to the making of such payments directly to the Lenders or the Issuing Banks, to pay to such Agent any amount due to it, in its capacity as Agent, under the Loan Documents (including under Section 9.03). Nothing contained herein shall be deemed to authorize any Agent to release authorize or consent to or accept or adopt on behalf of any Lien on Lender or any Collateral Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the obligations or the rights of any Lender or Issuing Bank, or to vote in accordance with the Collateral Documents. Each respect of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) claim of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of any Lender or Issuing Bank in any such Intercreditor Agreementproceeding.
Appears in 1 contract
Sources: Credit Agreement (TripAdvisor, Inc.)
The Agents. Each of the Lenders Lender hereby irrevocably designates and appoints each the Agents as the agents of the Administrative Agent such Lender under this Agreement and the Collateral Agent as its agent other Loan Documents, and each Lender irrevocably authorizes each Agent, in such Agent capacity, to take such actions action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to such Agent by the terms of this Agreement and the other Loan Documents, together with such actions and other powers as are reasonably incidental thereto. In additionEach Lender that holds Term B Loans or has Term B Commitments and each Qualified Counterparty (in each case, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks serving as an Agent hereunder shall have the same rights and powers 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 other Lender and may exercise provision to the same as though it were not an Agentcontrary elsewhere in this Agreement, 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 an no Agent under the Loan Documents. The Agents shall not have any duties or obligations responsibilities, except those expressly set forth in 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 Loan Documents. Without Lenders, without hereby limiting the generality of the foregoingany implied authority, (a) to receive on behalf of the Agents shall not be subject Lenders all payments of principal of and interest on the Loans, all payments and all other amounts due to any fiduciary or other implied dutiesthe Lenders hereunder, regardless and promptly to distribute to each Lender its proper share of whether a Default has occurred and is continuing, each payment so received; (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 applicable Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders as shall be necessary under the circumstances as provided in Section 8.02) or, in the case to any of the Collateral Documents, the Required Secured Parties, Borrowers of any Default specified in this Agreement of which such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) except to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as expressly set forth in the Loan Documents, received by such Agent. None of the Agents 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 banks serving as Agents or nor any of their respective Affiliates in any capacity. No Agent Related Parties shall be liable to the Lenders as such for any action taken or not omitted to be taken by it with any of them except to the consent extent finally judicially determined to have resulted from its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its her own gross negligence or willful 138 misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower , or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with herewith, or be required to ascertain or to make any Loan Document, (iii) inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, (iv) the genuineness, validity, enforceability, enforceability or effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument Loan Documents or document other instruments or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Agentagreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the 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 Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each None of the Agents also may rely upon nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel. The Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the Requisite Lenders. The Collateral Agent hereby agrees that it holds and will hold all of its right, accountants title and interest in, to and under the Security Documents and the Collateral granted to the Collateral Agent thereunder whether now existing or experts. Each 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 Agents 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 perform be exercised by the Collateral Agent in respect of any Security Document as though set forth in full therein and all of its duties the powers, remedies and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each of the Agents Collateral Agent as set forth in any Security Document may be exercised from time to time as herein and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agenttherein provided. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow 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 BorrowerBorrowers. Upon any such resignation, the Required Requisite Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, right to appoint a successor. If 139 no successor shall have been so appointed by the Required Requisite Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500.0 million or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successorhereunder. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 10.05 shall continue in effect for the its 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 it while it was acting as an 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 any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Credit Agreement (Spirit AeroSystems Holdings, Inc.)
The Agents. Each (a) Certain Duties and Responsibilities of the Lenders hereby irrevocably appoints each of Agents:
(1) the Administrative Agent Agents undertake to perform such duties and the Collateral Agent as its agent and authorizes only such Agent to take such actions on its behalf and to exercise such powers duties as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. The Agents shall not have any duties or obligations except those expressly specifically set forth in the Loan Documents. Without limiting the generality of the foregoingthis Indenture, (a) the Agents shall not be subject to any fiduciary and no implied covenants 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 applicable Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as obligations shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, and (c) except as expressly set forth in the Loan Documents, the Agents shall not have read into this Indenture against 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 banks serving as Agents or any of their respective Affiliates in any capacityAgent. No Agent shall be liable under any fiduciary duty or other obligation towards, or have any relationship of agency or trust, for or with any person other than the Issuer. The Paying Agent shall not be required to make any payments to any holder of a Note if under any laws or regulations affecting the Paying Agent, such payment is not permitted;
(2) no provision of this Indenture shall require an Agent to take any action taken or not taken by fail to take any action that may cause it with the consent to expend or at the request of the Required Lenders (risk its own funds or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.02) or, otherwise incur financial liability in the case performance of the Collateral Documents, the Required Secured Parties, any of its duties hereunder or in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance exercise of any of the covenantsits rights or powers, agreements if it believes in its absolute discretion that repayment of such funds or other terms adequate indemnity against such risk or conditions set forth in any Loan Document, liability is not assured to it;
(iv3) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Agent. Each Agent Agents may rely and shall be entitled to rely upon, and shall not incur protected in acting or refraining from acting upon any liability for relying upon, any notice, requestresolution, certificate, consent, statement, instrument, document opinion, report, notice, request, direction, consent, order, bond, note, other evidence of indebtedness or other writing paper or document believed by it to be genuine and to have been signed or sent presented by the proper Personparty or parties including but not limited to any instruction provided to it by the Issuer or, as the case may be, the Trustee. Each Agent may refrain, without liability, from acting under any instructions that it determines, in its sole discretion, are equivocal, unclear or conflicting. Except as ordered by a court of competent jurisdiction or as required by law, the Agents shall be entitled to treat the Holder of any Note as the absolute owner thereof for all and shall not be required to obtain any proof thereof or as to the identity of the bearer or holder;
(4) the Agents also may rely upon consult with counsel and the written advice (including by email) of such counsel and any statement made to it orally Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or by telephone and believed omitted by it hereunder in good faith and in reliance thereon;
(5) The rights, powers, duties and obligations and actions of each Agent under this Indenture are several and not joint or joint and several;
(6) The Issuer and the Agents acknowledge and agree that in the event of a Default or Event of Default, the Trustee may, by notice in writing to the Issuer and the Agents, require that the Agents act as agents of, and take instructions exclusively from, the Trustee. Prior to receiving such written notice from the Trustee, the Agents shall be made the agents of the Issuer and need have no concern for the interests of the Holders;
(7) Any obligation the Agents may have to publish a notice to Holders of Global Notes on behalf of the Issuer will be met upon delivery of the notice to Euroclear and/or Clearstream, as applicable, if and so long as any Notes are represented by one or more Global Notes and ownership of book-entry interests therein are shown on the proper Personrecords of Euroclear or Clearstream, as applicable;
(8) In the event that instructions given to any Agent are not reasonably clear, then such Agent shall be entitled to seek clarification from the Issuer by written request promptly and in any event within one Business Day of receipt by such Agent of such instructions. If an Agent has sought clarification in accordance with this clause (8), then such Agent shall be entitled to take no action until such clarification is provided, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for taking any action taken or not taken by it pending receipt of such clarification;
(9) The Issuer hereby authorizes and directs the Paying Agent to make from funds so paid to the Paying Agent payment of all amounts due on the Notes in accordance with the advice of any such counsel, accountants or experts. Each terms of the Agents may perform any Notes and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agentthis Indenture. Each of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 No Agent shall be discharged from its duties required to make any payment under this Indenture unless and obligations under until it has received the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 full amount to be taken by any of them while it was acting as an 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 any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral paid in accordance with the Collateral Documentsterms of this Indenture. Each To the extent that an Agent has made a payment for which it did not receive the full amount, the Issuer will reimburse the Agent the full amount of any shortfall. If any payment provided hereunder is made late but otherwise in accordance with the provisions hereof, the Paying Agent shall nevertheless make payments in respect of the Lenders hereby Notes as aforesaid following receipt by the Paying Agent of the necessary funds;
(a10) authorizes The Agents shall act solely as agents of the Issuer and instructs shall have no fiduciary or other obligation towards, or have any relationship of agency or trust, for or with any Person other than the Collateral Issuer, except as expressly stated elsewhere in this Indenture;
(11) The Issuer shall notify each Agent in the event that it determines that any payment to enter into be made by an Intercreditor Agreement Agent under the Notes is a payment which could be subject to FATCA Withholding if Indebtedness is incurred such payment were made to a recipient that is secured by Liens contemplated by generally unable to receive payments free from FATCA Withholding, and the extent to which the relevant payment is so treated; provided, however, that the Issuer’s obligation under this clause (g11) shall apply only to the extent that such payments are so treated by virtue of Section 5.08 and characteristics of the Issuer, the Notes, or both;
(b12) agrees In the event that the Issuer determines in its sole discretion that deduction or withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Agents on any Notes, then the Issuer will be entitled to redirect or reorganize any such payment in any way that it sees fit in order that the payment may be made without such deduction or withholding; provided that any such redirected or reorganized payment is made through a recognized institution of international standing and otherwise made in accordance with this Indenture and the Applicable Law. The Issuer will be bound by promptly notify the Agents and will take no actions contrary the Trustee of any such redirection or reorganization. To the extent the Trustee or the Paying Agent is required to withhold or deduct any amount for or on account of any Tax, the Issuer shall give notice thereof to the provisions Paying Agent and the Trustee as soon as it becomes aware of such Intercreditor Agreement.requirement and shall give to the Paying Agent and Trustee such information as the Paying Agent or Trustee requires to enable it to make such deduction or withholding;
(13) For the purposes of this Section 7.13(a), the following definitions apply:
Appears in 1 contract
Sources: Indenture (Avis Budget Group, Inc.)
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any Person 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 Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. 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) the Agents shall not be subject to 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 applicable Agent is Agents are 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 8.0211.02) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower Company or any of its the Subsidiaries that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.0211.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerCompany), 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 of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 11.03 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders other Agents, the Lenders, the Issuing Bank and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of a resignation by the Collateral Facility Agent, ) or the Required Secured PartiesFacility Agent (in the case of a resignation by any other Agent) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. If no successor Agent shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 11.03 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 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, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint parties agree that none of the Mandated Lead Arrangers and Joint Bookrunners, Bookrunners or the Co-Syndication Agents and the Co-Documentation Agents (each as identified Arrangers referred to on the cover page of this Agreement), in their capacities as such, shall have no rights, any powers, duties, liabilities, fiduciary relationships duties or obligations responsibilities under any Loan Document this Agreement or any of other Loan Document, except in its capacity, as applicable, as an Agent, a Lender, the other documents related hereto. Each of Issuing Bank or the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementSwingline Lender hereunder.
Appears in 1 contract
Sources: Credit Agreement (Pall Corp)
The Agents. Each of the Lenders hereby irrevocably appoints the each of the Administrative Agent and the Collateral Agent as its agent and authorizes such each Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 FDSI, the Borrower or any other Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. The Agents No Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents no Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents no Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documents, the Agents no Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to FDSI, the Borrower or any of its the other Subsidiaries that is communicated to or obtained by the banks bank serving as Agents an Agent or any of their respective 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each No Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by FDSI, the Borrower or a Lender, and the Agents no Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for FDSI or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an such Agent. Subject to the appointment and acceptance of a successor Paying Agent or Administrative Agent as provided in this paragraph, either the Paying Agent or an Administrative Agent may resign at any time by notifying the Lenders and the BorrowerFDSI. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation right with the Borrowerconsent of FDSI (not to be unreasonably withheld), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Paying Agent or Administrative Agent, as the case may be, gives notice of its resignation, then the retiring Paying Agent or Administrative Agent may, on behalf of the Lenders, appoint a successor Paying Agent or Administrative Agent, as applicable, 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 an Paying Agent or 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 Paying Agent or Administrative Agent, as applicable, and the retiring Paying Agent or Administrative Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by FDSI and the Borrower to a successor Paying Agent or Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between FDSI and the Borrower and such successor. After such the Paying Agent’s 's or Administrative Agent's resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Paying Agent or 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 an Paying Agent or Administrative 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Bridge Credit Agreement (Federated Department Stores Inc /De/)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any Person serving as an Agent 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 an Agent, and such bank Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. 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) the Agents shall not be subject to 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 applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), 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 failure to disclose, any information relating to the Borrower Company or any of its the Subsidiaries that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerCompany), 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 of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 an Agent. 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, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Credit Agreement (Expedia, Inc.)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms hereof and of the Loan other Credit Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the The bank or banks serving as an Agent the Agents hereunder shall have the same rights and powers in its their capacity as a Lender Lenders as any other Lender and may exercise the same as though it they were not an AgentAgents, and such bank or banks and its 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 it they were not an Agent under the Loan DocumentsAgents hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, foregoing (a) the Agents shall not be subject to 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 hereby that the applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured PartiesMajority Lenders, and (c) except as expressly set forth in the Loan Documentsherein, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks serving as Subsidiary. The Agents or any of their respective Affiliates in any capacity. No Agent shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Majority Lenders (or such other number or percentage of the Lenders Lenders, as shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Partiesmay be, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Agents by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV III or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent The Agents 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 them to be genuine and to have been signed or sent by the proper Person. Each of the The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem with reasonable care, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each of the The Agents may perform any and all of its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such Agentthe Agents. Each of the The Agents and any such sub-agent may perform any and all of its their duties and exercise its their rights and powers through their respective Related PartiesAffiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties Affiliates of each Agent the Agents 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Majority Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation right to appoint a successor with the Borrower, to appoint a successor'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 (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent which shall be a bank or an Affiliate thereof, in each case with a net worth of at least $1,000,000,000 and an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successorhereunder. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the its 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 it while it was acting as an 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 any Loan Documentthis Agreement, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint BookrunnersNotwithstanding any other provision contained herein, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by each Lender acknowledges that the provisions Administrative Agent is not acting as an agent of the Collateral Documents, including those terms thereof applicable Borrower and that the Borrower will not be responsible for acts or failures to act on the Collateral part of the Administrative Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes neither the Collateral Syndication Agent to release nor any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs Documentation Agents shall, in its capacity as such, have any responsibilities under this Agreement or the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementother Credit Documents.
Appears in 1 contract
Sources: Term Loan and Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Facility Agent as its agent and authorizes such the Facility Agent, and each of the Lenders also hereby irrevocably appoints the Canadian Facility Agent as its sub-agent and authorizes the Canadian Facility Agent, to take such actions on its behalf and to exercise such powers as are delegated to such the Facility Agent and Canadian Facility Agent, respectively, by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any bank serving as an Agent hereunder shall have the same rights and powers in its capacity respective capacities as a Lender as any other Lender and may exercise the same as though it they were not an such Agent, and such bank banks and its their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it they were not an Agent under the Loan Documentshereunder. The Agents Any bank serving as an Agent hereunder shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents such Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents such Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documents, the Agents such Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company, any Borrower or any of its their Subsidiaries that is communicated to or obtained by the banks bank serving as Agents such Agent or any of their respective Affiliates in any capacity. No An Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each An Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company, a Borrower or a Lender, and the Agents such Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable such Agent. Each [[NYCORP:3031108v4:4452W:11/27/07--08:05 p]] An Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents An 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. Each An Agent may consult with legal counsel (who may be counsel for the Company or 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 of the Agents An 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 of the Agents Such Agent and any such sub-agent agent, as applicable, may perform any and all of its their duties and exercise its their 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 each (i) the Facility Agent and any such sub-agent and (ii) the Canadian Facility 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 an Facility Agent and Canadian Facility Agent, respectively. Subject to the appointment and acceptance of a successor Facility Agent or successor Canadian Facility Agent, as the case may be, as provided in this paragraph, either an Agent may resign at any time by notifying the Lenders Lenders, the Company and the Borrowerother Agent. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrowerconsent of the Company (which consent shall not be unreasonably withheld, and shall not be required so long as any Event of Default set forth in clause (i) or (j) of Section 7.01 has occurred and is continuing) and the other Agent (which consent shall not be unreasonably withheld), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the such retiring Agent may, on behalf of the Lenders, appoint a successor Agent Agent, which shall be (i) a bank with an office in New York, New YorkLondon, or an Affiliate of any such bank, for the successor Facility Agent, and (ii) a bank with an office in Toronto, or an Affiliate of any such bank, for the successor Canadian Facility Agent. Upon the acceptance of its appointment as an Facility Agent or Canadian Facility Agent hereunder by a successor, as the case may be, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the such retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Company or any Borrower to a successor Agent shall be the same as those payable to its respective predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Agent, its respective 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 an Agent. 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 [[NYCORP:3031108v4:4452W:11/27/07--08:05 p]] 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Each party hereto agrees and acknowledges that the Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), do not have any duties or responsibilities in their capacities as suchLead Arrangers hereunder and shall not have, shall have no rightsor become subject to, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral liability hereunder in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementcapacities.
Appears in 1 contract
Sources: Credit Agreement (Yum Brands Inc)
The Agents. Each of the Lenders and each Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such LenderL▇▇▇▇▇’s behalf. Each of the banks 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 the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. 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) the Agents shall not be subject to 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 applicable 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 8.028.02 or Section 8.02A) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective 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 under the circumstances as provided in Section 8.028.02 or Section 8.02A) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificatecertificate (including any Borrowing Base Certificate), report or other document delivered hereunder or in connection with any Loan Document, (iii) qualification of (or lapse of any qualification of) any Account, Credit Card Receivable, Inventory or real property under the eligibility criteria set forth herein, other than eligibility criteria expressly referring to the matters described therein being acceptable or satisfactory to, or being determined by, the Collateral Agent, (iv) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (ivv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Agent. Notwithstanding anything herein to the contrary, the Agents shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrowers, any Lender or any Issuing Bank as a result of, any such determination of the Credit Exposure, Excess Availability, the Borrowing Base or the component amounts of any thereof. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificatecertificate (including any Borrowing Base Certificate), consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerCompany), 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 Lender and Issuing Bank hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of any Agent; (b) the Agents (i) make no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to any Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and any Person performing any field examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel, and that the Agents undertake no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use and not share any Report with any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend and hold the Agents, each other Person preparing a Report and the Related Parties of any of the foregoing harmless from and against, the claims, actions, proceedings, damages, costs, expenses and other amounts (including reasonable attorney fees) incurred by any of them as the direct or indirect result of any third parties who obtain all or part of any Report through the indemnifying Lender. Each of the Agents 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 of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may m▇▇ resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. In addition, if either Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and such 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 no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documents. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement) (each of the foregoing, in its capacity as such, a “Titled Person”), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to (i) release any Lien Liens on any Non-ABL Priority Collateral in accordance with an Intercreditor Agreement and (ii) release any Liens on any Collateral in accordance with the Collateral Documents, including any Liens on real property following the delivery of a Real Property Exclusion Notice. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens L▇▇▇▇ contemplated by clause (gb)(ix) or (b)(x) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement. It is understood and agreed by the parties hereto, that as part of its duties and functions, the Collateral Agent shall serve as the hypothecary representative for itself and for all present and future Secured Parties, as contemplated by Article 2692 of the Civil Code of Québec (the “CCQ”). For greater certainty, and without limiting the powers of the Collateral Agent, each of the Lenders and the Issuing Banks hereby irrevocably appoints the Collateral Agent as hypothecary representative for all present and future Lenders, Issuing Banks and any other Secured Parties as contemplated under Article 2692 of the CCQ in order to hold the hypothecs granted under any Loan Document pursuant to the laws of the Province of Quebec to secure performance of all or part of the Obligations (as defined in each such Loan Document) and to exercise such powers and duties which are conferred upon the hypothecary representative thereunder. The appointment of the Collateral Agent as hypothecary representative shall be deemed to have been ratified and confirmed by each Person that accedes or has acceded to this Agreement as a Lender or Issuing Bank after the date hereof. The Loan Parties hereby acknowledge the appointment of the Collateral Agent as the hypothecary representative of the Secured Parties as contemplated under Article 2692 of the CCQ. In the event of the resignation of the Collateral Agent and appointment of a successor Collateral Agent, such successor Collateral Agent shall also act as hypothecary representative without further act or formality being required to appoint such successor Collateral Agent as the successor hypothecary representative for the purposes of any then existing deeds of hypothec. The execution by the Collateral Agent as the hypothecary representative of the relevant deeds of hypothec or other relevant documentation prior to the date hereof is hereby ratified and confirmed by each Lender and Issuing Bank. In its capacity of hypothecary representative, the Collateral Agent shall (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted hereunder, all rights and remedies given to the hypothecary representative pursuant to any hypothec, applicable law 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 and the Issuing Banks, and (c) be entitled to delegate from time to time any of its powers or duties under any deed of hypothec or other Loan Document, on such terms and conditions as it may determine from time to time.
Appears in 1 contract
Sources: Amendment to Revolving Credit Agreement (Bath & Body Works, Inc.)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent (for purposes of this Article, the Administrative Agent, the Collateral Agent and the Funding Agent are referred to collectively as the “Agents”) its agent and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to Without limiting the extent required under the laws of any jurisdiction, each generality of the Lenders foregoing, the Agents are hereby grants expressly authorized to execute any and all documents (including releases) with respect to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each rights of the banks Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Collateral Documents. The bank serving as an the Administrative Agent and/or the Collateral 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 the Borrower or any Subsidiary Credit Party or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. The Agents Neither Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents neither Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents neither Agent 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 hereby that the applicable such Agent is required instructed in writing 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.08), and (c) except as expressly set forth in the Loan Documents, the Agents neither Agent shall not have any duty to disclose, and nor shall not it be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries Credit Party that is communicated to or obtained by the banks bank serving as Agents Administrative Agent and/or Collateral Agent or any of their respective its Affiliates in any capacity. No Neither 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 under the circumstances as provided in Section 8.029.08) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Neither Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower a Credit Party or a Lender, and the Agents neither Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Personperson. Each of the Agents Agent may also may rely upon any statement made to it orally or by telephone and believed by it to be have been made by the proper Personperson, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the BorrowerBorrowers), 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 of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowerBorrowers. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with subject, if no Event of Default shall have occurred and be continuing, to the Borrowerconsent of the Borrowers (not to be unreasonably withheld), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, subject, if no Event of Default shall have occurred and be continuing, to the consent of the Borrowers (not to be unreasonably withheld), on behalf of the LendersLenders and the Issuing Bank, appoint a successor 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Borrowers and such successor. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.05 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 an 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, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Thermadyne Holdings Corp /De)
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to such the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In additionFor purposes of this Article VIII, all references to the extent required under Administrative Agent shall be deemed to be references to both the laws of any jurisdiction, each of the Lenders hereby grants to Administrative Agent and the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalfAgent. Each of the banks The bank serving as an 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 an 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 an the Administrative Agent under the Loan Documentshereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents 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 Agents Administrative Agent 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 applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.022.05(j) or, in the case of the Collateral Documents, the Required Secured Partiesand Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Agents Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Administrative Agent or any of their respective its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.022.05(j) or, in the case of the Collateral Documents, the Required Secured Parties, or Section 9.02) or in the absence of its own gross negligence or willful misconduct. Each The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower or a Lender, and the Agents Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent. Each of the Agents The Administrative Agent and any such sub-agent subagent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent subagent and to the Related Parties of each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Administrative Agent. Subject Each of the Lenders, the Issuing Bank and the Loan Parties agree, that the Administrative Agent may subject to Section 9.01(b), but shall not be obligated to, make the Approved Electronic Communications available to the appointment Lenders and acceptance the Issuing Bank by posting such Approved Electronic Communications on IntraLinks™ or a substantially similar electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”) and each of the Loan Parties agrees to make the Approved Electronic Communications available to the Administrative Agent in an acceptable soft copy or electronic format. Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Effective Date, a successor dual firewall and a User ID/Password Authorization System) and the Approved Electronic Platform is secured through a single-user-per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders and the Issuing Bank and the Loan Parties acknowledge and agree that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the Lenders, the Loan Parties and the Issuing Bank hereby approve distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. The Approved Electronic Communications and the Approved Electronic Platform are provided “as is” and “as available”. None of the Administrative Agent or any of its Affiliates or any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy or completeness of the Approved Electronic Communications and the Approved Electronic Platform and each expressly disclaims liability for errors or omissions in the Approved Electronic Communications and the Approved Electronic Platform. No warranty of any kind, express, implied or statutory (including, without limitation, any warranty of merchantability, fitness for a particular purpose, noninfringement of third party rights or freedom from viruses or other code defects) is made by the Agent Affiliates in connection with the Approved Electronic Communications or the Approved Electronic Platform. Each of the Lenders, the Issuing Bank, and the Loan Parties agrees that the Administrative Agent may, but (except as provided may be required by applicable law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform in this paragraph, either accordance with the Administrative Agent’s generally-applicable document retention procedures and policies. The Administrative Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Bank, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. 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 such the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, Lenders identified in this Agreement as the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing Documentation Agents shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the Required Secured Parties foregoing, neither the Syndication Agent nor the Documentation Agents shall have or be deemed to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release have a fiduciary relationship with any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementLender.
Appears in 1 contract
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any Person 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 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 an Agent under the Loan Documentshereunder. 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) the Agents shall not be subject to 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 applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), 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 failure to disclose, any information relating to the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 9.03 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of a resignation by the Collateral Administrative Agent, ) or the Required Secured PartiesAdministrative Agent (in the case of a resignation by the London Agent) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor Agent shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 an Agent. 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, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint parties agree that none of the Co-Lead Arrangers and Joint Bookrunners, Bookrunners or the Co-Syndication Agents and the Co-Documentation Agents (each as identified Agent referred to on the cover page of this Agreement), in their capacities as such, shall have no rights, any powers, duties, liabilities, fiduciary relationships duties or obligations responsibilities under any Loan Document this Agreement or any of other Loan Document, except in its capacity, as applicable, as an Agent, a Lender, the other documents related hereto. Each of Issuing Bank or the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementSwingline Lender hereunder.
Appears in 1 contract
Sources: Credit Agreement (Pall Corp)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent and authorizes such Agent each of the Agents to take such actions on its behalf behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each The bank serving as either of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks serving as an Agent 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 an the Agent or the Security 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 an the Agent under or the Loan DocumentsSecurity 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, (a) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a an Event of 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 except, subject to the last paragraph of this Article VIII, discretionary rights and powers expressly contemplated by the Loan Documents that the applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), 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 failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks bank serving as Agents the Agent or any of their respective its Affiliates in any capacity. No Agent Neither of the Agents 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent Neither of the Agents shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and neither of the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document 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 any of the applicable AgentAgents. Each Agent of the Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each Agent of the Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 Agentthe Agents. Each of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent any of the Agents 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 an Agenteither of the Agents. Subject to the appointment and acceptance of a successor Agent or Security Agent as provided in this paragraph, either Agent any of the Agents may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the consent (not to be unreasonably withheld or delayed) of the Borrower, to appoint a successor, which shall be another Lender; provided that during the existence and continuation of an Event of Default, no consent of the Borrower shall be required. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 thirty (30) days after the retiring Agent or Security Agent gives notice of its resignation, then the retiring Agent or Security Agent may, on behalf of the Lenders, appoint a successor Agent or Security Agent which shall be a commercial bank with an office in New York, New York, or an Affiliate of any such bankcommercial bank reasonably acceptable to Borrower. Upon the acceptance of its appointment as an Agent or Security 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 or Security Agent, and the retiring Agent or Security Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Agent or Security Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such Agent’s either of the Agents' resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Agent or Security Agent, its sub-agents sub‑agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Agent or Security Agent. Each Lender acknowledges that it has, independently and without reliance upon any of 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 any of 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint BookrunnersEach Lender, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page by virtue of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any its acceptance of the other documents related hereto. Each benefits of the Lenders Collateral Documents) hereby (a) further authorizes the Security Agent, on behalf of and for the benefit of the Lenders, to enter into each Collateral Document as secured party and each Lender agrees to be bound by the provisions terms of each Collateral Document; provided that the Security Agent shall not (a) enter into or consent to any material amendment, modification, termination or waiver of any provision contained in any Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments Document or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes release any Collateral (except as otherwise expressly permitted or required pursuant to the terms of this Agreement or the applicable Collateral Document), in each case without the prior consent of the Required Lenders (or, if required pursuant to Section 9.02, all Lenders); provided further, however, that, without further written consent or authorization from the Lenders, the Security Agent may execute any documents or instruments necessary to release any Lien on encumbering any item of Collateral that is the subject of a sale or other disposition of assets permitted by this Agreement or to which the Required Lenders have otherwise consented. Anything contained in any of the Loan Documents to the contrary notwithstanding, the Borrower, the Security Agent and each Lender hereby agree that (A) no Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document, it being understood and agreed that all powers, rights and remedies under the Collateral Documents may be exercised solely by the Security Agent for the benefit of Lenders in accordance with the terms thereof and (B) in the event of a foreclosure by the Security Agent on any of the Collateral Documents. Each pursuant to a public or private sale, the Security Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Security Agent, as agent for and representative of the Lenders hereby (abut not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) authorizes shall be entitled, for the purpose of bidding and instructs making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Security Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of at such Intercreditor Agreementsale.
Appears in 1 contract
The Agents. Each of the Lenders and each Issuing Bank hereby irrevocably appoints each of (i) the Administrative Agent and the Collateral Agent as its agent and authorizes such the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to such the Administrative Agent by the terms of the Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto and (ii) the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks The financial institutions serving as an Agent the 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 an Agent, and such bank financial institutions and its 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 any Affiliate thereof of any of the foregoing as if it they were not an Agents hereunder. No Agent under the Loan Documents. The Agents shall not have any duties or obligations except those expressly set forth in the Senior Loan Documents. Without limiting the generality of the foregoing, (a) the Agents no Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents no Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Senior Loan Documents that the applicable 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 8.022.20 or 9.02) or, in the case of the Collateral Documents, the Required Secured Parties, and (c) except as expressly set forth in the Senior Loan Documents, the Agents no Agent shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks financial institution serving as Agents such Agent or any of their respective 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 under the circumstances as provided in Section 8.022.20 or 9.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconductwilful misconduct (as determined by a court of competent jurisdiction by final and non-appealable judgment). Each No Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, as applicable, and the Agents no Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Senior Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Senior Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Senior 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 Senior Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Any Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents Agent may perform any and all of its duties and exercise any and all of its rights and powers by or through any one or more sub-agents appointed by such Agent. Each of the Agents Any Agent and any such sub-agent may perform any and all of its duties and exercise any and all of its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each any 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent (which shall be a bank financial institution with an office in New York, New York, or an Affiliate of any such bankfinancial institution). Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 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 any Loan Documentthis Agreement, any other Senior Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably party hereto authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Administrative Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 customary intercreditor agreements in connection with Securitizations and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Factoring Transactions permitted under this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
The Agents. Each of the Lenders and Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Credit Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any Person 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 Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Credit Documents. Without limiting the generality of the foregoing, (a) the Agents shall not be subject to 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 Credit Documents that the applicable Agent is Agents are 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 8.0211.02) or, in the case of the Collateral Documents, the Required Secured Parties, and (c) except as expressly set forth in the Loan Credit Documents, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Company or any of its the Subsidiaries that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable to any Lender or Issuing Bank for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.0211.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Credit Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Credit Document, other than to confirm receipt of items expressly required to be delivered to the applicable such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability to any Lender or Issuing Bank for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the any Borrower), independent accountants and other experts selected by it, and shall not be liable to any Lender or Issuing Bank for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 11.03 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders other Agents, the Lenders, the Issuing Banks and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of a resignation by the Collateral Administrative Agent, ) or the Required Secured PartiesAdministrative Agent (in the case of a resignation by any other Agent) shall have the right, in consultation with the BorrowerCompany and, so long as no Event of Default shall have occurred and be continuing, with the Company's prior consent (which shall not be unreasonably withheld), to appoint a successor. If no successor Agent shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank, that is reasonably acceptable to the Company. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 11.03 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 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, any Loan Document, other Credit Document or any related agreement or any document furnished hereunder or thereunder. The parties agree that none of the Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents Bookrunners and the Co-Documentation Agents (each as identified Syndication Agent named on the cover page of this Agreement)Agreement shall, in their capacities as suchsuch capacities, shall have no rights, any powers, duties, liabilities, fiduciary relationships duties or obligations responsibilities under any Loan Document this Agreement or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementCredit Document.
Appears in 1 contract
Sources: Credit Agreement (Amdocs LTD)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Facility Agent as its agent and authorizes such the Facility Agent, and each of the Canadian Lenders also hereby irrevocably appoints the Canadian Facility Agent as its sub-agent and authorizes the Canadian Facility Agent, to take such actions on its behalf and to exercise such powers as are delegated to such the Facility Agent and Canadian Facility Agent, respectively, by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any bank serving as an Agent hereunder shall have the same rights and powers in its capacity respective capacities as a Lender as any other Lender and may exercise the same as though it they were not an such Agent, and such bank banks and its their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it they were not an Agent under the Loan Documentshereunder. The Agents Any bank serving as an Agent hereunder shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents such Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents such Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documents, the Agents such Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company, any Borrower or any of its their Subsidiaries that is communicated to or obtained by the banks bank serving as Agents such Agent or any of their respective Affiliates in any capacity. No An Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each An Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company, a Borrower or a Lender, and the Agents such Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable such Agent. Each An Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents An 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. Each An Agent may consult with legal counsel (who may be counsel for the Company or 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 of the Agents An 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 of the Agents Such Agent and any such sub-agent agent, as applicable, may perform any and all of its their duties and exercise its their 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 each (i) the Facility Agent and any such sub-agent and (ii) the Canadian Facility 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 an Facility Agent and Canadian Facility Agent, respectively. Subject to the appointment and acceptance of a successor Facility Agent or successor Canadian Facility Agent, as the case may be, as provided in this paragraph, either an Agent may resign at any time by notifying the Lenders (or, in the case of the Canadian Facility Agent, the Canadian Lenders), the Company and the Borrowerother Agent. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrowerconsent of the Company (which consent shall not be unreasonably withheld, and shall not be required so long as any Event of Default set forth in clause (i) or (j) of Section 7.01 has occurred and is continuing) and the other Agent (which consent shall not be unreasonably withheld), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the such retiring Agent may, on behalf of the Lenders, appoint a successor Agent Agent, which shall be (i) a bank with an office in New York, New YorkLondon, or an Affiliate of any such bank, for the successor Facility Agent, and (ii) a bank with an office in Toronto, or an Affiliate of any such bank, for the successor Canadian Facility Agent. Upon the acceptance of its appointment as an Facility Agent or Canadian Facility Agent hereunder by a successor, as the case may be, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the such retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Company or any Borrower to a successor Agent shall be the same as those payable to its respective predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Agent, its respective 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 an Agent. 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Each party hereto agrees and acknowledges that the Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), do not have any duties or responsibilities in their capacities as suchLead Arrangers hereunder and shall not have, shall have no rightsor become subject to, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral liability hereunder in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementcapacities.
Appears in 1 contract
Sources: Credit Agreement (Yum Brands Inc)
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to such the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In additionFor purposes of this Article VIII, all references to the extent required under Administrative Agent shall be deemed to be references to both the laws of any jurisdiction, each of the Lenders hereby grants to Administrative Agent and the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalfAgent. Each of the banks The bank serving as an 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 an 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 an the Administrative Agent under the Loan Documentshereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents 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 Agents Administrative Agent 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 applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.022.05(j) or, in the case of the Collateral Documents, the Required Secured Partiesand Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Agents Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Administrative Agent or any of their respective its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower or a Lender, and the Agents Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent. Each of the Agents The Administrative Agent and any such sub-agent subagent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent subagent and to the Related Parties of each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either The Administrative Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Bank, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. 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 such the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, Lenders identified in this Agreement as the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the Required Secured Parties foregoing, neither the Syndication Agent nor the Documentation Agent shall have or be deemed to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release have a fiduciary relationship with any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementLender.
Appears in 1 contract
Sources: Credit Agreement (Select Specialty Hospital Topeka Inc)
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of (i) JPMorgan Chase Bank, N.A. as Administrative Agent, (ii) JPMorgan Chase Bank, N.A. as Collateral Agent, and (iii) ▇▇▇▇▇ Fargo Bank, N.A., as Documentation Agent, (the Administrative Agent, the Collateral Agent and the Collateral Agent Documentation Agent, for purposes of this Article being referred to individually as its agent an "Agent" and collectively as the "Agents"), and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of this Agreement or by the terms of any other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In additionNotwithstanding the foregoing, the Documentation Agent shall undertake such responsibilities with respect to the extent required credits extended under this Agreement as agreed to from time to time between the laws of Administrative Agent and the Documentation Agent. The Documentation Agent shall not have any jurisdictionother right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalfLender as a lender. Each of the banks 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 the Borrower any Credit Party or any Subsidiary or other Affiliate thereof as if it were not an Agent under Agent. None of the Loan Documents. The Agents shall not have any duties or obligations except those expressly set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents no Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documentsherein, the Agents no Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower any Credit Party or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents such Agent or any of their respective its Affiliates in any capacity; provided, however, that Agents shall give Lenders immediate written notice of any action taken or notice received or given by any of them pursuant to the Intercreditor Agreement. 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each No Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Borrowers or a Lender, and the Agents no Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this AgreementAgreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection with any Loan Documentherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document document. The Administrative Agent shall not be responsible for or (v) have any duty to ascertain or inquire into the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrowerany Credit Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 Agentit including, without limitation, its duties, rights and powers under any Loan Documents in respect of the Collateral or any portion thereof. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the foregoing, each Agent (including but not limited to the Administrative Agent) acting under or in respect of the Collateral, shall act for the ratable benefit of the Lenders and the Issuing Bank as appropriate hereunder (unless otherwise provided herein or in any other Loan Documents) and shall be entitled to the exculpations, privileges, indemnities and other protections provided for the benefit of the Agent herein or therein. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowerBorrowers. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerBorrowers, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documentsas such. The fees payable by the Borrower Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Borrowers and such successor. After such any Agent’s resignation hereunder's resignation, the provisions of this Article and Section 8.03 9.03 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 an 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, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to such the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In additionFor purposes of this Article VIII, all references to the extent required under Administrative Agent shall be deemed to be references to both the laws of any jurisdiction, each of the Lenders hereby grants to Administrative Agent and the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalfAgent. Each of the banks The bank serving as an 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 an 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 an the Administrative Agent under the Loan Documentshereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents 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 Agents Administrative Agent 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 applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.022.05(j) or, in the case of the Collateral Documents, the Required Secured Partiesand Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Agents Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Administrative Agent or any of their respective its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.022.05(j) or, in the case of the Collateral Documents, the Required Secured Parties, or Section 9.02) or in the absence of its own gross negligence or willful misconduct. Each The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower or a Lender, and the Agents Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent. Each of the Agents The Administrative Agent and any such sub-agent subagent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent subagent and to the Related Parties of each Administrative Agent and any such sub-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 an Administrative Agent. Subject Each of the Lenders, the Issuing Bank and the Loan Parties agree, that the Administrative Agent may subject to Section 9.01(b), but shall not be obligated to, make the Approved Electronic Communications available to the appointment Lenders and acceptance the Issuing Bank by posting such Approved Electronic Communications on IntraLinks™ or a substantially similar electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”) and each of the Loan Parties agrees to make the Approved Electronic Communications available to the Administrative Agent in an acceptable soft copy or electronic format. Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Effective Date, a successor dual firewall and a User ID/Password Authorization System) and the Approved Electronic Platform is secured through a single-user-per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders and the Issuing Bank and the Loan Parties acknowledge and agree that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the Lenders, the Loan Parties and the Issuing Bank hereby approve distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. The Approved Electronic Communications and the Approved Electronic Platform are provided “as is” and “as available”. None of the Administrative Agent or any of its Affiliates or any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy or completeness of the Approved Electronic Communications and the Approved Electronic Platform and each expressly disclaims liability for errors or omissions in the Approved Electronic Communications and the Approved Electronic Platform. No warranty of any kind, express, implied or statutory (including, without limitation, any warranty of merchantability, fitness for a particular purpose, noninfringement of third party rights or freedom from viruses or other code defects) is made by the Agent Affiliates in connection with the Approved Electronic Communications or the Approved Electronic Platform. Each of the Lenders, the Issuing Bank, and the Loan Parties agrees that the Administrative Agent may, but (except as provided may be required by applicable law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform in this paragraph, either accordance with the Administrative Agent’s generally-applicable document retention procedures and policies. The Administrative Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Bank, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Bor- rower 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 such the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, Lenders identified in this Agreement as the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing Documentation Agents shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the Required Secured Parties foregoing, neither the Syndication Agent nor the Documentation Agents shall have or be deemed to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release have a fiduciary relationship with any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementLender.
Appears in 1 contract
Sources: Credit Agreement (United Surgical Partners International Inc)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the entities named as the Administrative Agent and the Collateral London Agent in the heading of this Agreement, and their successors in such capacities, to serve as its agent the Administrative Agent and the London Agent, respectively, under the Loan Documents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any Person serving as an 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 an Agent, and such bank Person and its 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 Borrower Parent or any Subsidiary or other Affiliate thereof as if it such Person were not an Agent under hereunder and without any duty to account therefor to the Loan DocumentsLenders or the Issuing Banks. 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) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuingcontinuing (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Agents is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) the Agents shall not 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 applicable Agent is Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.02) or9.02); provided that no Agent shall be required to take any action that, in the case of the Collateral Documentsits opinion, the Required Secured Partiescould expose such Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Parent or any of its Subsidiaries Subsidiary or other Affiliate thereof that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful misconductmisconduct (such absence to be presumed for purposes of this Article VIII unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to such Agent by the Borrower Parent or a Lender, and the Agents no Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, including any representation by any Incremental Lender in any Incremental Facility Agreement (it being understood and agreed that each Agent may rely, and shall incur no liability for relying, upon such representation), (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan DocumentDocument or the occurrence of any Default, (iv) the sufficiency, 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, or satisfaction of any condition that expressly refers to the applicable matters described therein being acceptable or satisfactory to such Agent. Notwithstanding anything herein to the contrary, the Agents shall not have any liability arising from any confirmation of any Revolving Credit Exposure or the component amounts thereof, any determination of the Exchange Rate, the LC Exchange Rate or the US Dollar Equivalent or any determination of any rate that reflects the costs to any Lenders of making or maintaining any Loans as contemplated by Section 2.14. Each Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (including, if applicable, a Financial Officer). Each of the Agents Agent also may rely rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper PersonPerson (including, if applicable, a Financial Officer), and may act upon any such statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, amendment, extension or renewal 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 not incur any liability for relying thereonhave received notice to the contrary from such Lender or such Issuing Bank sufficiently in advance to the making of such Loan or the issuance, amendment, extension or renewal of such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for the any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents Agent may perform any of and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agentit. Each of the Agents Agent and any such sub-agent may perform any of and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs this Article shall apply to any such sub-agent and to the Related Parties of 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 an the Administrative Agent or the London Agent, as applicable. No Agent shall be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. Subject to the appointment and acceptance terms of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerParent. Upon receipt of any such notice of resignation, the Required Lenders (or, in the case of a resignation of the Collateral Administrative Agent, ) or the Required Secured PartiesAdministrative Agent (in the case of a resignation by the London Agent) shall have the right, in consultation with the BorrowerParent, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. If any Agent shall be a Defaulting Lender pursuant to clause (e) of the definition of such term, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to Parent and such Agent remove such Agent in its capacity as such and, in consultation with Parent, appoint a successor. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent, as the case may be, and the such retiring or removed Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Borrowers and such successor. Notwithstanding the foregoing, in the event (a) no successor Agent to a retiring Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its intent to resign, the retiring Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and Parent or (b) no successor to a removed Agent shall have been so appointed and shall have accepted such appointment by the day that is 30 days following of the issuance of a notice of removal, the removal shall become effective on such 30th day, and on the date of effectiveness of such resignation or removal, as the case may be, (i) the retiring or removed Agent shall be discharged from its duties and obligations hereunder and under the Loan Documents, and (ii) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent; provided that (A) all payments required to be made hereunder or under any other Loan Documents to the retiring or removed Agent for the account of any Person other than such Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the retiring or removed Agent shall also directly be given or made to the other Agent, and each Lender and each Issuing bank. After such an Agent’s resignation hereunderor removal hereunder and under the other Loan Documents, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring or removed 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 an Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Agents either Agent, any Arranger, any Manager or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Agents either Agent, any Arranger, any Manager or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Each Lender and Joint BookrunnersIssuing Bank, by delivering its signature page to this Agreement and, in the case of any Lender, funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, an Incremental Facility Agreement or an Issuing Bank Agreement pursuant to which it shall become a Lender or an Issuing Bank, as the case may be, 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 Co-Syndication Agents and Administrative Agent or the Co-Documentation Agents (each as identified Lenders on the cover page of this Agreement)Effective Date. Notwithstanding anything herein to the contrary, in their capacities as suchno Arranger, Manager, Syndication Agent or Documentation Agent shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or any an Issuing Bank), but all such Persons shall have the benefit of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable expense reimbursement and indemnities to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementextent provided for hereunder.
Appears in 1 contract
Sources: Credit Agreement (TripAdvisor, Inc.)
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to such the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In additionFor purposes of this Article VIII, all references to the extent required under Administrative Agent shall be deemed to be references to both the laws of any jurisdiction, each of the Lenders hereby grants to Administrative Agent and the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalfAgent. Each of the banks The bank serving as an 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 an 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 an the Administrative Agent under the Loan Documentshereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents 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 Agents Administrative Agent 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 applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.022.05(j) or, in the case of the Collateral Documents, the Required Secured Partiesand Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Agents Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Administrative Agent or any of their respective its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower or a Lender, and the Agents Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Each of the Agents The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Bank, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. 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 such the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, Lenders identified in this Agreement as the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the Required Secured Parties foregoing, neither the Syndication Agent nor the Documentation Agent shall have or be deemed to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release have a fiduciary relationship with any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementLender.
Appears in 1 contract
Sources: Credit Agreement (St. Louis Pharmaceutical Services, LLC)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the The bank or banks serving as an Agent the Agents hereunder shall have the same rights and powers in its their capacity as a Lender Lenders as any other Lender and may exercise the same as though it they were not an AgentAgents, and such bank or banks and its their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it they were not an Agent under the Loan DocumentsAgents hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, foregoing (a) the Agents shall not be subject to 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 hereby that the applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured PartiesLenders, and (c) except as expressly set forth in the Loan Documentsherein, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks serving as Subsidiaries. The Agents or any of their respective Affiliates in any capacity. No Agent shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders Lenders, as shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Partiesmay be, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Agents by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV III or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent The Agents 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 them to be genuine and to have been signed or sent by the proper Person. Each of the The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for the BorrowerCompany), independent accountants and other experts selected by itthem, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each of the The Agents may perform any and all of its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such Agentthe Agents. Each of the The Agents and any such sub-agent may perform any and all of its their duties and exercise its their rights and powers through their respective Related PartiesAffiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties Affiliates of each Agent the Agents 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either Agent may resign at any time by notifying the Lenders and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, right to appoint a successorsuccessor with the Company's written consent (which shall not be unreasonably withheld or delayed and shall not be required from the Company if an Event of Default has occurred and is continuing). If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Company'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 Agent which shall be a bank or an Affiliate thereof, in each case with a net worth of at least $1,000,000,000 and an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successorhereunder. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 10.03 shall continue in effect for the its 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 it while it was acting as an 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 any Loan Documentthis Agreement, any related agreement or any document furnished hereunder or thereunder. The None of the Joint Lead Arrangers and Joint BookrunnersArrangers, the Co-Syndication Agents and Agent or the Co-Documentation Agents (each as identified named on the cover page of this Agreement)Agreement shall, in their capacities its capacity as such, shall have no rightsany duties or responsibilities under this Agreement (other than, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any in the case of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral DocumentsJoint Lead Arrangers, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral described in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement6.04).
Appears in 1 contract
Sources: Revolving Credit Agreement (Readers Digest Association Inc)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent under the Loan Documents, and authorizes the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent to take such actions on its behalf and to exercise such powers as are delegated to such the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks serving as an Agent Agents 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 an Agent, and such bank Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the either Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not an Agent under hereunder and without any duty to account therefor to the Loan DocumentsLenders. [[NYCORP:3265188v16:REMOTE_KFASULLO:03/30/11--12:01 a]] The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents 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 Agents Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary powerspower, except discretionary rights and powers expressly contemplated by the Loan Documents that the applicable Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.02) orthe Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the case of the Collateral Documents, the Required Secured PartiesAdministrative Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Agents Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Borrowers, any Subsidiary or any other Affiliate of its Subsidiaries any of the foregoing that is communicated to or obtained by the banks Person serving as Agents Administrative Agent or any of their respective its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.02the Loan Documents) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment. Each The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower FCX, a Lender or a Lenderan Issuing Bank, and the Agents Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan DocumentDocument or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Each Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from (A) any confirmation of the Revolving Exposure or the component amounts thereof, (B) any confirmation of the aggregate Revolving Exposure attributable to Loans made to PTFI and Letters of Credit issued at the request of PTFI or of the component amounts thereof or (C) any determination as to whether a Letter of Credit constitutes a Financial Letter of Credit or a Performance Letter of Credit. The Administrative Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). Each of the Agents The Administrative Agent also may rely shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or [[NYCORP:3265188v16:REMOTE_KFASULLO:03/30/11--12:01 a]] authenticator thereof), and shall not incur may act upon any liability for relying thereonsuch statement prior to receipt of written confirmation thereof. Each The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowerBorrowers), 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 of the Agents The Administrative Agent may perform any of and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such the Administrative Agent. Each of the Agents The Administrative Agent and any such sub-agent may perform any of and all of its their duties and exercise its their rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs this Article shall apply to any such sub-agent and to the Related Parties of each the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Administrative Agent. Subject to the appointment and acceptance terms of a successor Agent as provided in this paragraph, either the Administrative Agent may resign at any time by notifying from its capacity as such. In connection with such resignation, the Lenders Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks and the BorrowerBorrowers. Upon receipt of any such notice of resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerBorrowers, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignationintent to resign, then the retiring Administrative Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor Agent 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 an Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between by the Borrower Borrowers and such successor. After Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrowers, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation hereunderfrom its capacity as such, the provisions of this Article and Section 8.03 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an AgentAdministrative Agent and in respect of the matters referred to in the proviso under clause (a) above. [[NYCORP:3265188v16:REMOTE_KFASULLO:03/30/11--12:01 a]] Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon either Agent, any person listed on the Agents cover page of this Agreement as an Arranger, or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon either Agent, any person listed on the Agents cover page of this Agreement as an Arranger, or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Each Lender, by delivering its signature page to this Agreement and Joint Bookrunnersfunding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption or an Incremental Facility Agreement pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Co-Administrative Agent or the Lenders on the Effective Date. No Credit Party shall have any right individually to enforce any Guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Credit Parties in accordance with the terms thereof. Each Credit Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. Notwithstanding anything herein to the contrary, neither the Syndication Agents and the Co-Documentation Agents (each as identified Agent nor any Person named on the cover page of this Agreement), in their capacities Agreement as such, an Arranger or a Documentation Agent shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or any an Issuing Bank), but all such Persons shall have the benefit of the other documents related heretoindemnities provided for hereunder. Each The provisions of this Article are solely for the benefit of the Agents, the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereofIssuing Banks, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release neither Borrower nor any Lien on other Loan Party shall have any Collateral in accordance with the Collateral Documents. Each rights as a third party beneficiary of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of any such Intercreditor Agreementprovisions.
Appears in 1 contract
Sources: Credit Agreement (Freeport McMoran Copper & Gold Inc)
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of (i) The Chase Manhattan Bank as Administrative Agent, and (ii) The Chase Manhattan Bank as Collateral Agent, (the Administrative Agent and the Collateral Agent Agent, for purposes of this Article being referred to individually as its agent an "Agent" and collectively as the "Agents"), and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of this Agreement or by the terms of any other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower any Credit Party or any Subsidiary or other Affiliate thereof as if it were not an Agent under Agent. None of the Loan Documents. The Agents shall not have any duties or obligations except those expressly set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents no Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documentsherein, the Agents no Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower any Credit Party or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents such Agent or any of their respective its Affiliates in any capacity; provided, however, that Agents shall give Lenders immediate written notice of any action taken or notice received or given by any of them pursuant to the Intercreditor Agreement. 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each No Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Borrowers or a Lender, and the Agents no Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this AgreementAgreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection with any Loan Documentherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document document. The Administrative Agent shall not be responsible for or (v) have any duty to ascertain or inquire into the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrowerany Credit Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 Agentit including, without limitation, its duties, rights and powers under any Loan Documents in respect of the Collateral or any portion thereof. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance foregoing, each Agent (including but not limited to the Administrative Agent) acting under or in respect of a successor Agent as provided in this paragraphthe Collateral, either Agent may resign at any time by notifying shall act for the ratable benefit of the Lenders and the Borrower. Upon Issuing Bank as appropriate hereunder (unless otherwise provided herein or in any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Partiesother Loan Documents) and shall have accepted such appointment within 30 days after be entitled to the retiring Agent gives notice of its resignationexculpations, then the retiring Agent mayprivileges, on behalf of the Lenders, appoint a successor 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 an Agent by a successor, such successor shall succeed to indemnities 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 under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 shall continue in effect other protections provided for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken the Agent herein or omitted to be taken by any of them while it was acting as an 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 any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementtherein.
Appears in 1 contract
The Agents. Each of the Lenders hereby irrevocably appoints (i) Bank of America, N.A., as Domestic Administrative Agent, and (ii) Bank of America, National Association, acting through its Canada branch, as Canadian Administrative Agent, in each of the Administrative Agent and the Collateral Agent case, to act on its behalf as its agent and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. In addition, Except with respect to the extent required under consent rights of the laws Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Agents and the Lenders, and the Borrowers shall not have rights as a third party beneficiary of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalfprovisions. Each of the banks bank serving as an the 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 the Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Borrowers or any Subsidiary or other Affiliate thereof as if it were not an the Agent under the Loan Documentshereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, (a) the Agents shall not be subject to 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 hereby that the applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documentsherein, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Agent or any of their respective its Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Agents by the Company, another Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in herein or the occurrence of any Loan DocumentDefault, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent The Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. Each of the The Agents 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. Each Agent 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 Agents may presume that such condition is satisfactory to such Lender unless the Agents shall have received notice to the contrary from such Lender prior to the making of such Loan. The Agents may consult with legal counsel (who may be counsel for the BorrowerBorrowers), 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 of the The Agents 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 Agentthe Agents. Each of the The Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs this Article shall apply to any such sub-agent and to the Related Parties of each Agent the Agents 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Either Agent may resign at any time by notifying the Lenders and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrowerconsent of the Company (not to be unreasonably withheld or delayed), to appoint a successor. Any resignation by Bank of America as Domestic Administrative Agent pursuant to this Section shall also constitute its resignation or removal as Canadian Administrative Agent. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Agent which shall be (a) in the case of the Domestic Administrative Agent, a bank with an office in New York, New York, or an Affiliate of any such bank and (b) in the case of the Canadian Administrative Agent, a bank with an office in Canada, or an Affiliate of any such bank; provided that if the applicable Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring 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 Agent shall instead be made by or to each Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Agent hereunder. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 an 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 any Loan Documentthis Agreement, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint BookrunnersIt is agreed that the Syndication Agent, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on and the cover page of this Agreement)Joint Lead Arrangers shall, in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships duties or obligations responsibilities under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor this Agreement.
Appears in 1 contract
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such each Agent to take such actions on its behalf behalf, including execution of the other Loan Documents, as applicable, and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks financial institution serving as an Agent hereunder and under the other Loan Documents shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such bank institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. 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) the Agents shall not be subject to 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), 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 failure to disclose, any information relating to the Borrower any Loan Party or any of its Subsidiaries that is communicated to or obtained by the banks institution serving as Agents an Agent or any of their respective its Affiliates in any capacity. No Neither 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Neither Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Borrower, the Administrative Agent or a Lender, and the Agents neither Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vvi) the satisfaction of any condition set forth in Article IV III or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents Agent and any such sub-agent of such Agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as their activities as an Agent. Subject to the appointment and acceptance of a successor Administrative Agent or Collateral Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders other Agent, the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrowerconsent of the Borrower (such consent not to be unreasonably withheld); provided that, no such consent shall be required at any time when an Event of Default has occurred and is continuing, to appoint a successorsuccessor Administrative Agent or Collateral Agent, as applicable. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Administrative Agent or Collateral Agent, as applicable, which shall be (a) a commercial bank with an office organized under the laws of the United States or of any State thereof or doing business in New York, New York, the United States and having a combined capital and surplus of at least $250,000,000 or (b) an Affiliate of any such commercial bank. Upon the acceptance by a successor of its appointment as an Administrative Agent by a successoror Collateral Agent, as applicable, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent or Collateral Agent, as applicable, and the retiring Administrative Agent or Collateral Agent, as applicable, shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent or Collateral Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such the Administrative Agent’s or the Collateral Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent or Collateral Agent, as applicable, its sub-sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Administrative Agent or Collateral Agent, as applicable. Each Lender acknowledges that it has, independently and without reliance upon the Agents Administrative Agent, the Collateral 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, the Collateral Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint BookrunnersEach Lender hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent or the Collateral Agent; (b) neither the Administrative Agent nor the Collateral Agent (i) makes any representation or warranty, express or implied, as to the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page completeness or accuracy of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document Report or any of the other documents related hereto. Each information contained therein or any inaccuracy or omission contained in or relating to a Report or (ii) shall be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and any Person performing any field examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Lenders hereby (a) agrees to be bound by Loan Parties’ personnel, and neither the provisions of the Collateral Documents, including those terms thereof applicable to Administrative Agent nor the Collateral Agent undertakes any obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, not share the provisions thereof authorizing Report with any Loan Party or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the Required Secured Parties to approve amendments or modifications thereto or waivers thereofgenerality of any other indemnification provision contained in this Agreement, it will pay and protect, and to control remedies thereunderindemnify, defend, and hold the Agents and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (bincluding reasonable attorney fees) irrevocably authorizes incurred by as the Collateral Agent to release direct or indirect result of any Lien on third parties who obtain all or part of any Collateral in accordance with Report through the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementindemnifying Lender.
Appears in 1 contract
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such each Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any person 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 the Borrower or GrafTech, a Borrower, any Subsidiary or other any Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. 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) the Agents shall not be subject to 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 applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documents, the Agents shall not have any [[NYCORP:3461068v7:3124W: 04/23/2014--12:33 AM]] duty to disclose, and shall not be liable for the failure to disclose, any information relating to the GrafTech, a Borrower or any of its the other Subsidiaries that is communicated to or obtained by the banks any bank serving as Agents Agent or any of their respective its Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Agents by the GrafTech, a Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent The Agents 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 them to be genuine and to have been signed or sent by the proper Personperson. Each of the The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Personperson, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for the Borrowera Borrower or GrafTech), independent accountants and other experts selected by itthem, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each of the The Agents may perform any and all of its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such Agentthem. Each of the The Agents and any such sub-agent may perform any and all of its their duties and exercise its their 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 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 an Agent. Subject to the appointment and acceptance of a successor to an Agent as provided in this paragraph, either such Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerBorrowers. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with with, if no Default or Event of Default shall have occurred and be continuing, the Borrowerconsent of the Borrowers (not to be unreasonably withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring resigning [[NYCORP:3461068v7:3124W: 04/23/2014--12:33 AM]] Agent gives notice of its resignation, then the retiring resigning Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor Agent which shall be a bank Lender with an office in New York, New York, or an Affiliate of any such bankLender. Upon the acceptance of its appointment as an Agent hereunder by a successorpredecessor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring resigning Agent, and the retiring resigning Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Borrowers and such successor. After such any Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring resigning 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 an 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Each Lender, by delivering its signature page to this Agreement or to an Assignment and Joint BookrunnersAssumption 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 CoAdministrative Agent or the Lenders on the Restatement Effective Date. Except with respect to the exercise of setoff rights of any Lender in accordance with Section 9.08 or with respect to a Lender’s right to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Agents on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by an Agent on any of the Collateral pursuant to a public or private sale or other disposition, an Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and such Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations under this Agreement as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. [[NYCORP:3461068v7:3124W: 04/23/2014-Syndication -12:33 AM]] In furtherance of the foregoing and not in limitation thereof, no Interest/Exchange Rate Protection Agreement or Commodity Rate Protection Agreement the obligations under which constitute Obligations will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such agreement shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph. The Agents shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of either Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall either Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. In case of the pendency of any proceeding with respect to any Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrowers or Guarantors) 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, LC Exposure and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and the Co-Documentation Agents Administrative Agent 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 proceeding is hereby authorized by each Lender, each Issuing Bank and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, the Issuing Banks or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents. The Lenders identified on the cover page of this Agreement)Agreement as the “Co-Syndication Agents”, in their capacities the entities identified on the cover of this Agreement as suchthe “Joint-Lead Arrangers”, the Lenders identified on the cover of this Agreement as the [[NYCORP:3461068v7:3124W: 04/23/2014--12:33 AM]] “Documentation Agents” and the Arrangers shall have no rights, powers, dutiesobligations, liabilities, fiduciary relationships responsibilities or obligations duties under this Agreement other than, in the case of any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documentssuch Lenders, including those terms thereof applicable to all Lenders as such. Without limiting the Collateral Agent and the provisions thereof authorizing the Required Secured Parties foregoing, such persons shall not have or be deemed to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release have a fiduciary relationship with any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementLender.
Appears in 1 contract
The Agents. Each of the Lenders and each Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. 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) the Agents shall not be subject to 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective Affiliates in any capacity. No [[NYCORP:3477056v9:3104W: 07/18/2014--12:20 AM]] 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 under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerCompany), 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 of the Agents 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 of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. In addition, if either Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and such 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 [[NYCORP:3477056v9:3104W: 07/18/2014--12:20 AM]] consent shall be required), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documents. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents sub‑agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an 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 any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (L Brands, Inc.)
The Agents. Each of the Lenders and the Issuing Lender hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent JPMorgan Chase Bank, N.A. as its agent and authorizes such JPMorgan Chase Bank, N.A., in its capacity as Administrative Agent and Collateral Agent, (i) to sign and deliver the Collateral Documents and (ii) to take such actions on its behalf and to exercise such powers as are delegated to such the Agent by the terms of the Loan Financing Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks The bank serving as an the 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 the 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 an the Agent under the Loan Documentshereunder. The Agents Agent shall not have any duties or obligations except those expressly set forth in the Loan Financing Documents. Without limiting the generality of the foregoing, (a) the Agents Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents Agent 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 Financing Documents that the applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties10.02), and (c) except as expressly set forth in the Loan Financing Documents, the Agents Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Agent or any of their respective its Affiliates in any capacity. No The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.0210.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Agent by the Borrower or a Lender, and the Agents Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Financing Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Financing Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Financing Document or any other agreement, instrument or document or document, (v) the satisfaction of any condition set forth in Article IV 4 or elsewhere in any Loan Financing Document, other than to confirm receipt of items expressly required to be delivered to the applicable Agent, or (vi) the existence, genuineness or value of any of the Collateral or the validity, perfection, recordation, priority or enforceability of any Lien on any of the Collateral. Each The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents The 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. Each The Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Without limiting the generality of the Agents foregoing, the Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or to enforce compliance with any provision of any Loan Document relating to Disqualified Institutions or (y) have any liability with respect to, or arising out of, any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. The 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 the Agent. Each of the Agents The Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each the 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either the Agent may resign at any time by notifying the Lenders Lenders, the Issuing Lender and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Lender, appoint a successor 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such the Agent’s resignation hereunder, the provisions of this Article and Section 8.03 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. To the extent required by any applicable laws, the Administrative Agent may withhold from any payment to any Lender or Issuing Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 2.16, each Lender and Issuing Lender shall indemnify and hold harmless the Administrative Agent against, and shall make payable in respect thereof within 10 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the IRS or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax from amounts paid to or for the account of such Lender or Issuing Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender or Issuing Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender or Issuing Lender by the Agent shall be conclusive absent manifest error. Each Lender and Issuing Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or Issuing Lender under this Agreement or any other Facility 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 or Issuing Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations. For purposes of determining withholding Taxes imposed under FATCA, from and after the Third Amendment and Restatement Date, the Lenders hereby authorize the Administrative Agent to treat and the Administrative Agent shall treat all Loans (including any Loans already outstanding) as not qualifying as “grandfathered obligations” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i). Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any Loan other Financing Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint BookrunnersNothing in any Financing Document shall impose on any of Citibank, the N.A., Barclays Bank PLC or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., in its capacity as Co-Syndication Agents and the Agent, or on any of Capital One, National Association or ▇▇▇▇▇ Fargo Capital Finance, LLC, in its capacity as Co-Documentation Agents Agent, or on any of Citigroup Global Markets Inc., Barclays Bank PLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Capital One, National Association and ▇▇▇▇▇ Fargo Capital Finance, LLC, in its capacity as a Second Amendment and Restatement Lead Arranger and Bookrunner, any duty or responsibility whatsoever. The Lender Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Credit Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Lender Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Lender Parties’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative Agent shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as identified the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the cover page Required Lenders contained in Section 10.02 of this Agreement), in their capacities as such, (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any be authorized to issue to each of the other documents related hereto. Each Lender Parties, ratably on account of the Lenders hereby (a) agrees relevant Obligations which were credit bid, interests, whether as equity, partnership, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Lender Party or acquisition vehicle to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereundertake any further action, and (bv) irrevocably authorizes to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lender Parties pro rata and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Lender Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Lender Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Lender Party shall execute such documents and provide such information regarding the Lender Party (and/or any designee of the Lender Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent to release any Lien on any Collateral may reasonably request in accordance connection with the Collateral Documents. Each formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens transactions contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementcredit bid.
Appears in 1 contract
Sources: Fourth Amendment and Restatement Agreement (Kindred Healthcare, Inc)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to such the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In additionFor purposes of this Article VIII, all references to the extent required under Administrative Agent shall be deemed to be references to both the laws of any jurisdiction, each of the Lenders hereby grants to Administrative Agent and the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalfAgent. Each of the banks The bank serving as an 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 an 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 an the Administrative Agent under the Loan Documentshereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents 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 Agents Administrative Agent 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 applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.022.05(j) or, in the case of the Collateral Documents, the Required Secured Partiesand Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Agents Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Administrative Agent or any of their respective its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.022.05(j) or, in the case of the Collateral Documents, the Required Secured Parties, or Section 9.02) or in the absence of its own gross negligence or willful misconduct. Each The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower or a Lender, and the Agents Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent. Each of the Agents The Administrative Agent and any such sub-agent subagent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent subagent and to the Related Parties of each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Administrative Agent. Subject Each of the Lenders, the Issuing Banks and the Loan Parties agree that the Administrative Agent may, subject to Section 9.01(b), but shall not be obligated to, make the Approved Electronic Communications available to the appointment Lenders and acceptance the Issuing Banks by posting such Approved Electronic Communications on IntraLinks™ or a substantially similar secure electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”) and each of the Loan Parties agrees to make the Approved Electronic Communications available to the Administrative Agent in an acceptable soft copy or electronic format. Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Effective Date, a successor dual firewall and a User ID/Password Authorization System) and the Approved Electronic Platform is secured through a single-user-per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders and the Issuing Banks and the Loan Parties acknowledge and agree that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the Lenders, the Loan Parties and the Issuing Banks hereby approve distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. The Approved Electronic Communications and the Approved Electronic Platform are provided “as is” and “as available”. None of the Administrative Agent or any of its Affiliates or any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy or completeness of the Approved Electronic Communications and the Approved Electronic Platform and each expressly disclaims liability for errors or omissions in the Approved Electronic Communications and the Approved Electronic Platform. No warranty of any kind, express, implied or statutory (including, without limitation, any warranty of merchantability, fitness for a particular purpose, noninfringement of third party rights or freedom from viruses or other code defects) is made by the Agent Affiliates in connection with the Approved Electronic Communications or the Approved Electronic Platform. Each of the Lenders, the Issuing Banks, and the Loan Parties agrees that the Administrative Agent may, but (except as provided may be required by applicable law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform in this paragraph, either accordance with the Administrative Agent’s generally-applicable document retention procedures and policies. The Administrative Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the consent of the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. 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 such the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint BookrunnersLenders identified in this Agreement as the Syndication Agents shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, neither Syndication Agent shall have or be deemed to have a fiduciary relationship with any Lender. To the extent required by any applicable laws, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by expanding the provisions of Section 2.17, each Lender shall indemnify and hold harmless the Collateral DocumentsAdministrative Agent against, within 10 days after written demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including those terms thereof applicable fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent as a result of the failure of the Administrative Agent to properly withhold any Tax from amounts paid to or for the account of such Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of, withholding Tax ineffective). A certificate as to the Collateral 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 Revolving Commitments and the provisions thereof authorizing repayment, satisfaction or discharge of all other obligations. For the Required Secured Parties to approve amendments or modifications thereto or waivers thereofavoidance of doubt, and to control remedies thereunderthe term “Lender” shall, and (b) irrevocably authorizes the Collateral Agent to release for purposes of this paragraph, include any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementIssuing Bank.
Appears in 1 contract
Sources: Credit Agreement (Symbion Inc/Tn)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the entities named as the Administrative Agent and the Collateral London Agent in the heading of this Agreement to serve as its agent the Administrative Agent and the London Agent, respectively, under the Loan Documents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any Person serving as an 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 an Agent, and such bank Person and its Affiliates may accept deposits from, lend money to to, act as the financial adviser or in any other advisory capacity for and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it such Person were not an Agent under hereunder and without any duty to account therefor to the Loan DocumentsLenders or the Issuing Banks. 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) the Agents shall not be subject to 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 to exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the applicable Agent is Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.02) or9.02); provided that no Agent shall be required to take any action that, in the case of the Collateral Documentsits opinion, the Required Secured Partiescould expose such Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries Subsidiary or other Affiliate thereof that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan DocumentDocument 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, or satisfaction of any condition that expressly refers to the applicable matters described therein being acceptable or satisfactory to such Agent. Notwithstanding anything herein to the contrary, the Agents shall not have any liability arising from any confirmation of any Revolving Credit Exposure or the component amounts thereof. Each Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (including, if applicable, a Financial Officer). Each of the Agents Agent also may rely rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper PersonPerson (including, and shall not incur any liability for relying thereonif applicable, a Financial Officer). Each Agent may consult with legal counsel (who may be counsel for the any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents Agent may perform any of and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agentit. Each of the Agents Agent and any such sub-agent may perform any of and all of its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs this Article shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities facility provided for herein as well as activities as an the Administrative Agent or the London Agent, as applicable. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerCompany. Upon receipt of any such notice of resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s resignation hereunderhereunder and under the other Loan Documents, the provisions of this Article and Section 8.03 9.03 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 an Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Agents either Agent, any Arranger 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 either Agent, any Arranger 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, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers Each Lender and Joint BookrunnersIssuing Bank, by delivering its signature page to this Agreement and, in the case of any Lender, funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption or an Issuing Bank Agreement pursuant to which it shall become a Lender or an Issuing Bank, as the case may be, hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. Notwithstanding anything herein to the contrary, no Arranger, Co-Syndication Agents and the Co-Agent or Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, Agent shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or any an Issuing Bank), but all such Persons shall have the benefit of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable expense reimbursement and indemnities to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementextent provided for hereunder.
Appears in 1 contract
Sources: Credit Agreement (Expedia, Inc.)
The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any Person 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 Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. 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) the Agents shall not be subject to 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 applicable Agent is Agents are 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 8.0211.02) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower Company or any of its the Subsidiaries that is communicated to or obtained by the banks serving as Agents them or any of their respective Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.0211.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerCompany), 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 of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 11.03 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying the Lenders other Agents, the Lenders, the Issuing Bank and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of a resignation by the Collateral Facility Agent, ) or the Required Secured PartiesFacility Agent (in the case of a resignation by any other Agent) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. If no successor Agent shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 11.03 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 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, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint parties agree that none of the Lead Arrangers Arranger and Joint BookrunnersBookrunner, the Co-Syndication Agents and or the Co-Documentation Agents (each as identified referred to on the cover page of this Agreement), in their capacities as such, shall have no rights, any powers, duties, liabilities, fiduciary relationships duties or obligations responsibilities under any Loan Document this Agreement or any of other Loan Document, except in its capacity, as applicable, as an Agent, a Lender, the other documents related hereto. Each of Issuing Bank or the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor AgreementSwingline Lender hereunder.
Appears in 1 contract
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent them by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to The bank serving as the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Administrative Agent and Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Administrative Agent or Collateral 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 an the Administrative Agent under the Loan Documentsor Collateral 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) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents neither Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by that, under the terms of the Loan Documents that the applicable Documents, 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 circumstances, as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), 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 failure to disclose, any information relating to the Borrower or any of its the Subsidiaries that is communicated to or obtained by the banks bank serving as Agents Administrative Agent and Collateral Agent or any of their respective its Affiliates in any capacity. No Neither 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each Neither Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents neither Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent The Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent the Agents 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 an Administrative Agent and Collateral Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successor; provided that such consultation with the Borrower shall not be required if an Event of Default has occurred and is continuing at the time of such appointment. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed in writing between the Borrower and such successor. After such the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an 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 Administrative Agent, the Lenders, the Issuing Banks and the Borrower. Upon any such resignation, the Administrative Agent shall have the right, in consultation with the Borrower, to appoint a successor. 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. After the Collateral Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Collateral 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 Collateral Agent. 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, any other Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Credit Agreement (Healthsouth Corp)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMorgan Chase is hereby appointed to act as Administrative Agent and CAF Agent on behalf of the Lenders and the Fronting Bank. Each of the Lenders and the Fronting Bank hereby irrevocably appoints each of authorizes the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent Agents to take such actions on its behalf of such Lender or holder and the Fronting Bank and to exercise such powers as are specifically delegated to such Agent the Agents by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. In additionThe Administrative Agent is hereby expressly authorized by the Lenders, the Fronting Bank and the CAF Agent, without hereby limiting any implied authority, (i) to receive on behalf of the Lenders, the Fronting Bank and the CAF Agent all payments of principal of and interest on the Outstanding Credits and all other amounts due to the extent required under Lenders, the laws Fronting Bank and the CAF Agent hereunder, and promptly to distribute to each Lender, the Fronting Bank and the CAF Agent its proper share of each payment so received, (ii) to give notice on behalf of each of the Lenders and the Fronting Bank to the Borrower of any jurisdictionEvent of Default of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder and (iii) to distribute to each Lender and the Fronting Bank 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 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 Borrower 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 Extension of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender 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 Lenders 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 Borrower 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 or the Fronting Bank, the other Agent or the Borrower of any of its 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 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, the Fronting Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders 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 Extensions of Credit made by it hereunder, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute Agents, in its individual capacity and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks serving not as an Agent hereunder 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 Agent, and such bank each of the Agents and its 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 it were not an Agent under Agent. Each Lender agrees (i) to reimburse the Loan Documents. The Agents 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 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 Lenders or the Fronting Bank, which shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents shall not be subject to 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective 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 under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent been reimbursed by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable Agent. Each Agent shall be entitled to rely upon, indemnify and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such sub-agent may perform pro rata share, from and against any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agentliabilities, and shall apply to their respective activities in connection with the syndication 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 in this paragraphtaxes, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignationobligations, the Required Lenders (orlosses, in the case of the Collateral Agentdamages, the Required Secured Parties) shall have the rightpenalties, in consultation with the Borroweractions, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (orjudgments, in the case of the Collateral Agentsuits, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignationcosts, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a bank with an office in New York, New York, expenses or an Affiliate disbursements of any such bank. Upon the acceptance of its appointment as an Agent kind or nature whatsoever that may be imposed on, incurred by a successor, such successor shall succeed or asserted against it in any way relating 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 under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such Agent’s resignation hereunder, the provisions or arising out of this Article and Section 8.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of Agreement or any actions action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be taken by 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 them while it was acting as an Agentits 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 364-Day 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 any Loan Document, this Agreement or any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint BookrunnersNeither Bank of America, the N.A. nor Citibank, N.A. shall, by virtue of its designation as "Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page Agent", nor shall The Bank of this Agreement)New York, in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any by virtue of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.its designation as
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase is hereby appointed to act as Administrative Agent, CMIL is hereby appointed to act as London Agent, and Chase Australia 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 appoints each of authorizes the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent Agents to take such actions on its behalf of such Lender or assignee and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, With respect to the extent required under the laws of any jurisdictionLoans made by it hereunder, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute in its individual capacity and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks serving not 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 the Agents and its their Affiliates in their respective individual capacities may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan DocumentsAgent. 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) the Agents no Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents no Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documents, the Agents no Agent shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks institution serving as Agents Agent or any of their respective 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each No Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the a Borrower or a Lender, and the Agents no Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementthe Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any the Loan Document Documents or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein or in any other Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each of the Agents Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 9.03 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either any Agent may resign at any time by notifying the Lenders and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such the Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 an 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, Document or any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, None of the institutions named as Co-Syndication Agents and the or Co-Documentation Agents (each as identified on in the cover page heading of this Agreement)Agreement shall, in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations responsibilities of any kind under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Valspar Corp)
The Agents. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank is hereby appointed to act as Administrative Agent and Collateral Agent, in each case on behalf of the Lenders and the Issuing Banks. Each of the Lenders and each assignee of any such Lender and each Issuing Bank, hereby irrevocably appoints each of authorizes the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent Agents to take such actions on its behalf of such Lender or assignee or Issuing Bank and to exercise such powers as are specifically delegated to such Agent the Agents by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In additionThe Administrative Agent is hereby expressly authorized by the Lenders and the Issuing Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of L/C Disbursements and all other amounts due to the extent required under Lenders hereunder, and promptly to distribute to each Lender or the laws applicable Issuing Bank its proper share of any jurisdiction, each payment so received; (b) to give notice on behalf of each of the Lenders hereby grants to the Collateral Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent any required powers has actual knowledge acquired in connection with its agency hereunder; (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 attorney to execute all notices, financial statements and enforce any Collateral Document governed other materials delivered by the laws of such jurisdiction on such Lender’s behalf. Each of the banks serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as Borrowers or any other Lender and may exercise Loan Party pursuant to this Agreement or the same other Loan Documents as though it were not an received by 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 an Agent under the Loan Documents. 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, the Administrative Agent and the Collateral Agent are hereby expressly authorized to execute any and all documents (aincluding releases) with respect to the Agents 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 subject obligated to perform any fiduciary or other implied duties, regardless of whether duties in such capacity as a Default has occurred and is continuing, (b) co-agent. Neither 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or nor any of their respective Affiliates in any capacity. No Agent directors, officers, employees or agents shall be liable as such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its his own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower , or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with herewith, or be required to ascertain or to make any Loan Document, (iii) inquiry concerning the performance or observance by the Borrowers or any other Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, (iv) the genuineness, validity, enforceability, enforceability or effectiveness or genuineness of any Loan Document this Agreement or any other agreementLoan Documents, instrument instruments or document agreements. The Agents shall in all cases be fully protected in acting, or (v) refraining from acting, in accordance with written instructions signed by the satisfaction of Required Lenders and, except as otherwise specifically provided herein, such instructions and any condition set forth in Article IV action or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to inaction pursuant thereto shall be delivered to binding on all the applicable AgentLenders. Each Agent shall shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Neither the Agents nor any of 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 any Lender or any Issuing Bank of any of its obligations hereunder or to any Lender or any Issuing Bank on account of the failure of or delay in performance or breach by any other Lender or Issuing Bank or the Borrowers or any other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each of the Agents also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each The Lenders hereby acknowledge that none of the Agents may perform shall be under any and all of its duties and exercise its rights and powers duty to take any discretionary action permitted to be taken by or through any one or more sub-agents appointed by such Agent. Each of it pursuant to the Agents 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 Agreement unless it shall be requested in writing to do so by the preceding paragraphs 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 an AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either Agent any of the Agents may resign at any time by notifying the Lenders and the BorrowerBorrowers. Upon any such resignation, the Required Lenders (orLenders, in with the case consent of the Collateral AgentParent Borrower (which consent shall not be unreasonably withheld), the Required Secured Parties) shall have the right, in consultation with the Borrower, right to appoint a successor, provided the consent 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 (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Agent, with the consent of the Parent Borrower (which consent shall not be unreasonably withheld), which shall be a bank with an office in New York, New York, 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 its any appointment as an Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successorhereunder. After such the Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.05 shall continue in effect for the its 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 it while it was acting as 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its aggregate Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Borrowers or any other Loan Party and (b) to indemnify and hold harmless each Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by or asserted against it in its capacity as 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 or any other Loan Party, provided that no Lender shall be liable to an Agent or any such other indemnified person for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined by a court of competent jurisdiction 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 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. The Joint Lead Arrangers and Joint Bookrunners, Neither the Co-Syndication Agents and Agent nor the Co-Documentation Agents (each as identified on the cover page of this Agreement), Agent shall have any duties or responsibilities hereunder in their capacities its capacity as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
The Agents. Each of the Lenders and Issuing Banks hereby irrevocably appoints each of the Administrative Agent, the Collateral Agent and the Collateral Syndication Agent as its agent and authorizes such each Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. 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) the Agents no Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents no Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documents, the Agents no Agent shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of its Subsidiaries that is communicated to or obtained by the banks any bank serving as Agents an Agent or any of their respective Affiliates in any capacitycapacity (other than as an Agent). 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 under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each No Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by Holdings, the Borrower or a Lender, and the Agents no Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document 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. The Arrangers, in their capacity as such, shall have no duties or responsibilities, and shall incur no liability, under this Agreement and the applicable Agentother Loan Documents. 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to Effective upon the appointment and acceptance of a successor to such Agent as provided in this paragraph, either any Agent may resign at any time by notifying upon 30 days notice to the Lenders Lenders, the Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrowerconsent of the Borrower (such consent not to be unreasonably withheld or delayed and such consent not to be required if an Event of Default under clause (a), (b), (h) or (i) of Section 7.01 has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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, and with the consent of the Borrower (such consent not to be unreasonably withheld or delayed) appoint a successor 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such any Agent’s resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Credit Agreement (Hawaiian Telcom Communications, Inc.)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each (a) the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as Administrative Agent under this Agreement and the other Loan Documents and (b) the entity named as London Agent in the heading of this Agreement and its successors as London Agent under this Agreement and the other Loan Documents, and authorizes the Administrative Agent and the Collateral Agent as its agent and authorizes such London Agent to take such actions on its behalf and to exercise such powers as are delegated to such the Administrative Agent or the London Agent, as applicable, by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any Person serving as an 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 an Agent, and such bank Person and its 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 Borrower Company or any Subsidiary or other Affiliate thereof as if it such Person were not an Agent under hereunder and without any duty to account therefor to the Loan DocumentsLenders or the Issuing Banks. The Agents No Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and the duties of the Agents hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuingcontinuing (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to either Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) the Agents shall not have any duty to take any discretionary action or to exercise any discretionary powerspower, except discretionary rights and powers expressly contemplated by the Loan Documents that the applicable an Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as such Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.02) orthe Loan Documents), provided that an Agent shall not be required to take any action that, in the case of the Collateral Documentsits opinion, the Required Secured Partiescould expose such Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Company, any Subsidiary or any other Affiliate of its Subsidiaries the Company that is communicated to or obtained by the banks Person serving as Agents an Agent or any of their respective 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 necessary, or as such Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 8.02the Loan Documents) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconductwilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and non-appealable judgment). Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to such Agent by the Borrower Company, a Lender or a Lenderan 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 made or deemed made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan DocumentDocument or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent or satisfaction of any condition that expressly refers to the applicable matters described therein being acceptable or satisfactory to an Agent. Notwithstanding anything herein to the contrary, no Agent shall have any liability arising from any confirmation of the Revolving Credit Exposure or the component amounts thereof. Each Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). Each of the Agents Agent also may rely shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof), and shall not incur may act upon any liability for relying thereonsuch statement prior to receipt of written confirmation thereof. Each Agent may consult with legal counsel (who may be counsel for the BorrowerCompany), 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 of the Agents Agent may perform any of and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agent. Each of the Agents Agent and any such sub-agent may perform any of and all of its their duties and exercise its their rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs this Article shall apply to any such sub-agent and to the Related Parties of 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 an Agent. No Agent shall be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. Subject to the appointment and acceptance terms of a successor Agent as provided in this paragraph, either each Agent may resign at any time by notifying from its capacity as such. In connection with such resignation, such Agent shall give notice of its intent to resign to the Lenders Lenders, the Issuing Banks and the BorrowerCompany. Upon receipt of any such notice of resignation, the Required Lenders (or, in the case of a resignation by the Collateral Administrative Agent, ) or the Required Secured PartiesAdministrative Agent (in the case of a resignation by the London Agent) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignationintent to resign, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor Agent Agent, which shall be a bank with an office in New York, New York, in the case of a successor to the Administrative Agent, or with an office in London, in the case of a successor to the London Agent, or, in each case, an Affiliate of any such bank. If any Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to Company and such Agent remove such Agent in its capacity as such and, in consultation with the Company, appoint a successor. Upon the acceptance of its appointment as an Administrative Agent or London Agent, as applicable, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent, as the case may be, and the such retiring or removed Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between by the Borrower Company and such successor. After Notwithstanding the foregoing, in the event (a) no successor Agent to a retiring Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its intent to resign, the retiring Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Company or (b) no successor to a removed Agent shall have been so appointed and shall have accepted such appointment by the day that is 30 days following of the issuance of a notice of removal, the removal shall become effective on such 30th day, and on the date of effectiveness of such resignation or removal, as the case may be, (i) the retiring or removed Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, and (ii) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent; provided that (A) all payments required to be made hereunder or under any other Loan Document to the retiring or removed Agent for the account of any Person other than such Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the retiring or removed Agent shall also directly be given or made to the other Agent and each Lender and each Issuing Bank. Following the effectiveness of an Agent’s resignation hereunderor removal from its capacity as such, the provisions of this Article and Section 8.03 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring or removed 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 an Agent. Each Lender and Issuing Bank irrevocably authorizes the Administrative Agent to determine (it being understood that such determination will be made jointly with the Company), in connection with any Subsidiary that is a Foreign Subsidiary becoming a Guarantor pursuant to the Guarantee Agreement, the terms and conditions of any limitations to be set forth in the Guarantee Agreement (or the Supplement referred to therein) with respect to such Subsidiary as contemplated by the definition of the term “Designated Subsidiary”. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Agents Agents, the Arrangers or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Agents Agents, the Arrangers or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, Document or any related agreement or any document furnished hereunder or thereunder. The Joint Lead Each Lender, by delivering its signature page to this Agreement, or delivering its signature page to an Assignment and Assumption or an Accession Agreement pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, any Agent or the Lenders on the Effective Date. Notwithstanding anything herein to the contrary, none of the Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified or any Person named on the cover page of this Agreement), in their capacities Agreement as such, a Syndication Agent shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article are solely for the benefit of the Agents, the Lenders and the Issuing Banks, and none of the Company or any other Loan Party shall have any rights as a third party beneficiary of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreementprovisions.
Appears in 1 contract
Sources: Credit Agreement (Verisign Inc/Ca)
The Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to each such Agent Agent, respectively, by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documentshereunder. The Agents No Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agents an Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents an Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties9.02), and (c) except as expressly set forth in the Loan Documents, the Agents an Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries Subsidiary that is communicated to or obtained by the banks bank serving as Agents an Agent or any of their respective its Affiliates in any capacity. No An Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.029.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful wilful misconduct. Each An Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the a Borrower or a Lender, and the Agents an Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerBorrowers), 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 of the Agents 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 Agentit. Each of the Agents Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of (i) each Agent and (ii) 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either an Agent may resign at any time by notifying the Lenders Lenders, the other Agents, the Issuing Banks and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the such retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or Toronto, Ontario, as applicable, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the such retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 9.03 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 an 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 any Loan Documentthis Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent on behalf of the Lenders and Issuing Banks, JPME is hereby appointed to act as London 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 JPMAL is hereby appointed to act as Australian Agent on behalf of the Lenders. Each of the Lenders and each Issuing Bank hereby irrevocably appoints each of authorizes the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks Any 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 such Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company, any Borrower or any Subsidiary or other Affiliate thereof as if it were not an such Agent under the Loan Documentshereunder. 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) the Agents no Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents no Agent 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 applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties10.02), and (c) except as expressly set forth in the Loan Documents, the Agents no Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company, any Borrower or any of its Subsidiaries Subsidiary that is communicated to or obtained by the banks bank serving as Agents Agent or any of their respective 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 under the circumstances as provided in Section 8.0210.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own bad faith, gross negligence or willful wilful misconduct. Each No Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the a Borrower or a Lender, and the Agents no such Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreementany Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents 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 of the Agents Such Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of each Agent the Agents 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, right (in consultation with, and with the Borrowerconsent of, the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s resignation hereunder, the provisions of this Article and Section 8.03 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 an 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, any other Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, None of the Co-institutions named as Syndication Agents and Agent or Documentation Agent in the Co-Documentation Agents (each as identified on the cover page heading of this Agreement)Agreement shall, in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations responsibilities of any kind under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor this Agreement.
Appears in 1 contract
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent Agents as its agent agents and authorizes such Agent the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Agents by the terms hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the The bank or banks serving as an Agent the Agents hereunder shall have the same rights and powers in its their capacity as a Lender Lenders as any other Lender and may exercise the same as though it they were not an AgentAgents, and such bank or banks and its their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Company or any Subsidiary or other Affiliate thereof as if it they were not an Agent under the Loan DocumentsAgents hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, foregoing (a) the Agents shall not be subject to 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 hereby that the applicable Agent is Agents are 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 8.02) or, in the case of the Collateral Documents, the Required Secured PartiesLenders, and (c) except as expressly set forth in the Loan Documentsherein, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks serving as Subsidiaries. The Agents or any of their respective Affiliates in any capacity. No Agent shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders Lenders, as shall be necessary under the circumstances as provided in Section 8.02) or, in the case of the Collateral Documents, the Required Secured Partiesmay be, or in the absence of its their own gross negligence or willful wilful misconduct. Each Agent In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Agents by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV III or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the applicable AgentAgents. Each Agent The Agents 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 them to be genuine and to have been signed or sent by the proper Person. Each of the The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for the BorrowerCompany), independent accountants and other experts selected by itthem, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each of the The Agents may perform any and all of its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such Agentthe Agents. Each of the The Agents and any such sub-agent may perform any and all of its their duties and exercise its their rights and powers through their respective Related PartiesAffiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties Affiliates of each Agent the Agents 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, either Agent may resign at any time by notifying the Lenders and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, right to appoint a successorsuccessor with the Company's written consent (which shall not be unreasonably withheld or delayed and shall not be required from the Company if an Event of Default has occurred and is continuing). If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 Company'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 Agent which shall be a bank or an Affiliate thereof, in each case with a net worth of at least $1,000,000,000 and an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such an Agent’s 's resignation hereunder, the provisions of this Article and Section 8.03 10.03 shall continue in effect for the its 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 it while it was acting as an 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 any Loan Documentthis Agreement, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint BookrunnersNone of the Arrangers, the Co-Syndication Agents and the or Co-Documentation Agents (each as identified on the cover page of this Agreement)Agents, in their capacities its capacity as suchan arranger, co-syndication agent or co-agent, shall have no rights, powers, duties, liabilities, fiduciary relationships any duties or obligations responsibilities under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor this Agreement.
Appears in 1 contract
The Agents. Each of the Lenders and each Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes such Agent to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks 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 the Borrower Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. 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) the Agents shall not be subject to 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 applicable 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 8.028.02) or, in the case of the Collateral Documents, the Required Secured Parties, 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 failure to disclose, any information relating to the Borrower Company or any of its Subsidiaries that is communicated to or obtained by the banks serving as Agents or any of their respective 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 under the circumstances as provided in Section 8.028.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the applicable 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 or sent by the proper Person. Each of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for the BorrowerCompany), 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 of the Agents 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 of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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 an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the BorrowerCompany, to appoint a successor. In addition, if either Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and such 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 no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 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 an Agent 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 under the Loan Documents. The fees payable by the Borrower Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After such Agent’s resignation hereunder, the provisions of this Article and Section 8.03 8.03 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 an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (L Brands, Inc.)
The Agents. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent Agents and the Collateral Agent Paying Agent, if any, as its agent agents or agent, as the case may be, and authorizes such Agent the Administrative Agents and the Paying Agent, if any, to take such actions on its behalf and to exercise such powers as are delegated to such Agent the Administrative Agents and the Paying Agent, if any, by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Each of the banks party 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 party 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 an Agent under the Loan Documentshereunder. The Administrative Agents and the Paying Agent, if any, shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, (a) the Administrative Agents and the Paying Agent, if any, shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agents and the Paying Agent, if any, 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 hereby that the applicable Agent is Administrative Agents and the Paying Agent, if any, are 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 8.02) or, in if so specified by this Agreement, all the case of the Collateral Documents, the Required Secured PartiesLenders), and (c) except as expressly set forth in the Loan Documentsherein, the Administrative Agents and the Paying Agent, if any, shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the any of Borrower or any of its Subsidiaries that is communicated to or obtained by the banks serving as Administrative Agents and the Paying Agent, if any, or any of their respective Affiliates in any capacity. No Agent The Administrative Agents and the Paying Agent, if any, shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.02) or, in if so specified by this Agreement, all the case of the Collateral Documents, the Required Secured Parties, Lenders) or in the absence of its own gross negligence or willful misconduct. Each Agent The Administrative Agents and the Paying Agent, if any, shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Administrative Agents and the Paying Agent, if any, by the Borrower or a Lender, and the Administrative Agents and the Paying Agent, if any, shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this AgreementAgreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder under any Credit Document or in connection with any Loan Documenttherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan the Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Credit Document or any other agreement, instrument or document document, or (v) the satisfaction of any condition condi- tion set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative Agents and the Paying Agent, if any. Each Agent The Administrative Agents and the Paying Agent, if any, shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the a proper Person. Each An initial list of the proper Persons with respect to 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 Agents and the Paying Agent, if any, also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereonthereon so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 or in the case of an Interest Election, complies with the requirement of Section 2.07, as the case may be, in all material respects (it being understood that oral notices of borrowing will be confirmed in writing by Borrower in accordance with Sections 2.03 and 2.07, as the case may be. Each Agent The Administrative Agents and the Paying Agent, if any, may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each of The Administrative Agents and the Agents Paying Agent, if any, may perform any and all of its duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such the Administrative Agents and the Paying Agent, if any. Each of The Administrative Agents and the Agents Paying Agent, if any, and any such sub-agent agents may perform any and all of its their duties and exercise its their rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent agents and to the Related Parties of each Agent the Administrative Agents and the Paying Agent, if any, and any such sub-agentagents, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Administrative Agents and the Paying Agent, if any. Subject to the appointment and acceptance of a successor Agent Administrative Agents and the Paying Agent, if any, as provided in this paragraph, either an Administrative Agent and the Paying Agent, if any, may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, to appoint a successorsuccessor which, so long as no Event of Default is continuing, shall be reasonably acceptable to Borrower. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Administrative Agent and Paying Agent, if any, gives notice of its resignation, then the retiring Administrative Agent and Paying Agent, if any, may, on behalf of the Lenders, appoint a successor Administrative Agent and Paying Agent, if any, 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 an Administrative Agent and Paying Agent, if any, 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 Paying Agent, if any, and the retiring Administrative Agent and Paying Agent, if any, shall be discharged from its duties and obligations under the Loan Documentshereunder. The fees payable by the Borrower to a successor Administrative Agent and Paying Agent, if any, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such an Administrative Agent’s 's and Paying Agent's, if any, resignation hereunder, the provisions of this Article VIII and Section 8.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent and Paying Agent, if any, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Administrative Agent and Paying Agent, if any. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by Borrower and without limiting the obligation of Borrower to do so), ratably according to their Applicable Percentage on the date on which indemnification is sought under this Article VIII (or, if indemnification is sought after the date upon which the Loans shall have been paid in full, ratably in accordance with their Applicable Percentage immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of 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 such Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent's gross negligence or willful misconduct. The agreements in this Section shall survive the payment of the Loans and all other 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 any Loan Documentthis Agreement, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract