Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto. (b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent. (c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacity.
Appears in 4 contracts
Sources: Loan and Security Agreement (GenMark Diagnostics, Inc.), Loan and Security Agreement (Cas Medical Systems Inc), Loan and Security Agreement (AMEDICA Corp)
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant designates BCUK as its agent and irrevocably authorizes it to Section 9.7) as Agent take action on such ▇▇▇▇▇▇’s behalf under the Loan Documents and authorizes Agent to (i) execute exercise the powers and deliver to perform the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf duties described therein and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such other powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through its agents or employees or by or through one or more sub-agents appointed by it and the exculpatory provisions of this Article shall apply to any trustee, cosuch sub-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under Notwithstanding any provision to the Loan Documentscontrary elsewhere in this Agreement, Agent (i) is acting solely on behalf of the Lendersprior to granting any material consent, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”waiver or approval hereunder, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes onlyAgent shall first consult with the Required Lenders, (ii) the Agent shall not elect to not take any material action hereunder without first consulting with the Required Lenders, (iii) the Required Lenders have the power to direct the Agent in the exercise of its powers and the performance of its duties under the Loan Documents and the Agent agrees to act in accordance with such directions of the Required Lenders; provided that in no event shall the Agent be required to comply with any such directions to the extent that the Agent reasonably believes that its compliance with such directions would be unlawful, could cause the Agent reputational harm, or for which the Agent does not reasonably believe it is not assuming any obligation under any Loan Document adequately indemnified.
(d) The provisions of this Article are solely for the benefit of Agent and the Lenders, and, other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan DocumentsSection 11.9, Agent Borrowers shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or rights as third party beneficiaries of any of its Subsidiaries that is communicated to the provisions hereof. Agent shall act solely as agent of the Lenders and assume no obligation toward or obtained by GECC relationship of agency or any of its Affiliates in any capacitytrust with or for Borrowers.
Appears in 3 contracts
Sources: Credit Agreement (Adit EdTech Acquisition Corp.), Credit Agreement (Adit EdTech Acquisition Corp.), Credit Agreement (Adit EdTech Acquisition Corp.)
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.79.9) as Agent under the Loan Debt Documents and authorizes the Agent to (ia) execute and deliver the Loan Debt Documents and accept delivery thereof on its behalf from any Loan PartyParties, (iib) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to the Agent under such Loan Debt Documents and (iiic) exercise such powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Finance Parties and none of Loan Parties nor any other person shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Debt Documents, Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Loan Party or any other person. Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the other Debt Documents. The duties of Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to have, by reason of this Agreement, any other Debt Document or otherwise a fiduciary or trustee relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Debt Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to Borrower or any other Loan Party that is communicated to or obtained by GECC or any of its affiliates in any capacity.
(b) Without limiting the generality of clause (a) above, Agent (through either itself or the Security Trustee) shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Debt Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person person making any payment in connection with any Loan Debt Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any proceeding described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens liens created by the Loan Debt Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens liens created or purported to be created by the Loan Debt Documents, (vi) except as may be otherwise specified in any Loan Debt Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Debt Documents, applicable Requirements of Law law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Debt Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Party with, and cash and Cash Equivalents cash equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Debt Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person person (including any Lender). Any such Person person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, If Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (iincluding failure to act) is acting solely on behalf of the Lenders, in connection with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Debt Document, then Agent shall be entitled to refrain from such act or taking such action unless and (iii) until Agent shall have no implied functionsreceived instructions from Requisite Lenders or all affected Lenders, responsibilities, duties, obligations or other liabilities under any Loan Documentas the case may be, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not incur liability to any person by reason of so refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Debt Document (a) if such action would, in the opinion of Agent, be contrary to law or any Debt Document, (b) if such action would, in the opinion of Agent, expose Agent to any potential liability under any law, statute or regulation or (c) if Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any duty to discloseright of action whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under any other Debt Document in accordance with the instructions of Requisite Lenders or all affected Lenders, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityas applicable.
Appears in 3 contracts
Sources: Loan Agreement, Loan Agreement (Peplin Inc), Loan Agreement (Peplin Inc)
Appointment of Agent. (a) Each Lender hereby appoints GECC DBNY (together with any successor Agent pursuant to Section 9.79.9) as the Administrative Agent under and the Loan Documents Collateral Agent hereunder and authorizes each such Agent to (i) execute and deliver the Loan Credit Documents and accept delivery thereof on its behalf from any Loan Credit Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to such Agent under such Loan Credit Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion . In furtherance of the Lenders)foregoing, each of the Lenders (including in its capacity as a potential Secured Swap Provider or a Bank Product Provider) hereby irrevocably appoints and is hereby authorized, authorizes the Collateral Agent to (i) act as the disbursing agent of (and collecting agent to hold any security interest created by the Collateral Documents for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of or in trust for) such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of acquiring, holding and enforcing any and all Liens created on Collateral granted by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority any of the Liens created or purported Credit Parties to be created by the Loan Documents, (vi) except as may be otherwise specified in secure any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens Obligations, together with respect to such powers and discretion as are reasonably incidental thereto. In this connection, the CollateralCollateral Agent (and any co-agents, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorneyattorneys-in-fact appointed by the Collateral Agent pursuant to Section 9.4 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and any other Person remedies thereunder at the direction of the Collateral Agent), will be entitled to the benefits of all provisions of this Section 9 (including any LenderSection 9.8(b). Any , as though such Person shall benefit from this Article 9 to co-agents, sub-agents and attorneys-in-fact were the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (iiunder the Credit Documents) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly if set forth in full herein with respect thereto. The provisions of this Section 9 are solely for the Loan Documents, Agent shall not benefit of the Agents and the Lenders and no Credit Party will have any duty to discloserights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties hereunder, each Agent will act solely as an agent of the Lenders and shall does not assume and will not be liable deemed to have assumed any obligation towards or relationship of agency or trust with or for failure to disclose, any information relating to any Loan Party the Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitySubsidiary.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Cohu Inc), Credit and Guaranty Agreement (Lumentum Holdings Inc.), Credit and Guaranty Agreement (Cohu Inc)
Appointment of Agent. (a) Each Lender hereby irrevocably appoints GECC (together with any successor Agent pursuant to Section 9.7) and designates Regions as Agent under the Loan to act as herein specified. Agent may, and each Lender by its acceptance of a Note and becoming a party to this Agreement shall be deemed irrevocably to have authorized Agent to, enter into all Credit Documents to which Agent is or is intended to be a party and authorizes Agent to (i) execute all amendments hereto and deliver the Loan all Collateral Documents and accept delivery thereof on its behalf from at any Loan time executed by any Credit Party, (ii) take such action on for its behalf benefit and the benefit of Lenders and, except as otherwise provided in this Section 9, to exercise all rights, such rights and powers under this Agreement and remedies and perform the duties other Credit Documents as are expressly specifically delegated to Agent under by the terms hereof and thereof, together with such Loan Documents other rights and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting . Each Lender agrees that any action taken by Agent, Co-Collateral Agent or the generality Requisite Lenders in accordance with the provisions of clause (a) abovethis Agreement or the other Credit Documents, and the exercise by Agent, Co-Collateral Agent or the Requisite Lenders of any of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all Lenders. Unless and until the authority to do so is revoked in writing by Requisite Lenders, Agent (or Agent and Co-Collateral Agent collectively) shall have the sole and exclusive right and authority (be authorized to the exclusion of the Lenders), and is hereby authorized, to determine (i) act as whether any Accounts or Inventory constitute Eligible Accounts or Eligible Inventory (basing such determination in each case upon the disbursing and collecting agent for the Lenders with respect meanings given to all payments and collections arising such terms in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceedingSection 1), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file whether to impose or release any Reserve, and prove claims to exercise their own Credit Judgment in connection therewith and file (iii) whether to decrease advance rates, which determinations and judgments, if exercised in good faith, shall exonerate Agent (or as applicable, Co-Collateral Agent) from any liability to Lenders or any other documents necessary or desirable Person for any errors in judgment. If Co-Collateral Agent wishes to allow the claims of Agent and Lenders request a change with respect to any Obligation item described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent clauses (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only), (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documentsforegoing sentence, hereby waives then Co-Collateral Agent shall notify Agent in writing at least five (5) Business Days prior to such requested change and agrees not shall participate in any discussions, if requested by Agent, with Borrower Agent in connection therewith. In the event that Agent and Co-Collateral Agent are unable to assert any claim against Agent based reach agreement collectively on the roles, duties and legal relationships expressly disclaimed action to be taken with respect to any of the items noted in such clauses (i), (ii) through or (iii) above. Except , then the determination of Agent or Co-Collateral Agent, as expressly set forth applicable, shall control that results in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any lower amount of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitythe Borrowing Base.
Appears in 3 contracts
Sources: Senior Secured Revolving Credit and Guaranty Agreement (Euramax Holdings, Inc.), Senior Secured Revolving Credit and Guaranty Agreement (Euramax International, Inc.), Senior Secured Revolving Credit and Guaranty Agreement (Euramax International, Inc.)
Appointment of Agent. (a) Each Lender Holder, by its acceptance of this Agreement, hereby irrevocably appoints GECC (together with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly collateral agent under this Agreement and the other Note Documents, including: (i) to execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to this Agreement or any other Note Document; (ii) to perform, exercise, and enforce any and all other rights and remedies of the Holders with respect to the Obligors, the Obligations, or otherwise related to any of same to the extent reasonably incidental to the exercise by Agent of the rights and remedies specifically authorized to be exercised by Agent by the terms of this Agreement or any other Note Document; (iii) to incur and pay such fees necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to this Agreement or any other Note Document; and (iv) to take such action as Agent deems appropriate on its behalf to exercise such powers delegated to Agent under such Loan by the terms hereof or the other Note Documents (including, without limitation, the power to give or to refuse to give notices, waivers, consents, approvals and (iiiinstructions and the power to make or to refuse to make determinations and calculations) exercise together with such powers as are reasonably incidental thereto.
thereto to carry out the purposes hereof and thereof and consents and agrees to the terms of Sections 3 and 9 and the Security Documents (bincluding, without limitation, the provisions providing for foreclosure and release of Collateral and authorizing the Agent to enter into the Security Document on its behalf) Without limiting as the generality of clause (a) abovesame may be in effect or may be amended or otherwise modified from time to time in accordance with their terms and this Agreement, and authorizes and directs Agent to enter into the Note Documents and to perform its obligations and exercise its rights thereunder in accordance therewith. As to any matters not expressly provided for by this Agreement and the other Note Documents, Agent shall have not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the sole and exclusive right and authority (to the exclusion instructions of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiverMajority Holders; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders shall not be required to take further actions as collateral sub-agents for purposes any action which, in the reasonable opinion of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees exposes Agent to take such further actions liability or which is contrary to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties this Agreement or any other action with respect to, any Loan Note Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agentapplicable law.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacity.
Appears in 2 contracts
Sources: Note Purchase and Security Agreement (Metromile, Inc.), Note Purchase and Security Agreement (INSU Acquisition Corp. II)
Appointment of Agent. 9.1 The Purchaser (on its own behalf and, if applicable on behalf of others for whom the Purchaser is contracting for hereunder) hereby irrevocably authorizes the Agent:
(a) Each Lender hereby appoints GECC to complete and correct in its sole discretion any information contained in this Agreement (together including the Appendices hereto), and any other document prepared or delivered by the Purchaser in connection with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan PartyPrivate Placement, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.which may require completion or correction;
(b) Without limiting to negotiate, settle and amend the generality form of clause the Warrant Certificate and any other agreement entered into or to be entered into in connection with this transaction;
(c) to negotiate and waive, in whole or in part, or extend the time for compliance with, any of the Issuer's representations, warranties or covenants or closing conditions, given or made by the Issuer for the benefit of the Purchaser, including but not limited to those contained herein, in the Agency Agreement and any other agreement, instrument or document entered into by the Agent or the Purchaser in connection with this subscription or the Private Placement, all in such manner and on such terms and conditions as the Agent may determine, acting reasonably, without in any way affecting the Purchaser's obligations or the obligations of such others hereunder;
(d) to act as the Purchaser's representative at the closing of the Private Placement to, among other things, receive certificates representing the Securities subscribed for by the Purchaser, and to swear, execute and file any receipts or other required documentation on behalf of the Purchaser, and
(e) to terminate this subscription on behalf of the Purchaser in the event that any condition precedent to the completion of the Private Placement has not been satisfied by the date set therefor.
9.2 Although the Agent may have introduced the Purchaser to the Issuer, the Purchaser acknowledges and agrees with, and for the benefit of, the Agent, such acknowledgments and agreements to survive Closing Date, that:
(a) abovethe Agent and its directors, Agent shall officers, employees, agents and representatives have no responsibility or liability of any nature whatsoever for the sole and exclusive right and authority (to the exclusion accuracy or adequacy of the Lenders)Disclosure Record, and or as to whether all information concerning the Issuer that is hereby authorized, required to be publicly disclosed by it has been generally disclosed;
(ib) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including Agent has not engaged in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders independent verification with respect to the Loan Parties and/or information contained in the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiverDisclosure Record; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.and
(c) Under the Loan DocumentsAgent is entitled to rely on the statements, Agent (i) is acting solely on behalf covenants and answers of the LendersPurchaser and the Issuer contained in this subscription, with duties and that are entirely administrative in nature, notwithstanding the use Purchaser will hold harmless the Agent and the Issuer from any loss or damage they may suffer whatsoever as a result of any misrepresentation of the defined term “Agent”, Purchaser contained herein or the terms “agent”, “Agent” and “collateral agent” and similar terms in Purchaser's failure to accurately complete any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not information required to assert any claim against Agent based on be completed by the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityPurchaser herein.
Appears in 2 contracts
Sources: Subscription Agreement (Crosshair Exploration & Mining Corp), Subscription Agreement (Crosshair Exploration & Mining Corp)
Appointment of Agent. (a) Each Lender and each Letter of Credit Issuer hereby irrevocably appoints GECC (together with any successor Agent pursuant JPMCB and its successors and assigns to Section 9.7) serve as Agent the administrative agent and collateral agent under the Loan Documents and each Lender and each Letter of Credit Issuer authorizes the Agent to (i) take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender and each Letter of Credit Issuer hereby authorizes the Agent to execute and deliver deliver, and to perform its obligations under, each of the Loan Documents and accept delivery thereof on its behalf from any Loan Partyto which the Agent is a party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform that the duties as are expressly delegated to Agent may have under such Loan Documents and (iii) exercise such powers as are reasonably incidental theretoDocuments.
(b) Without limiting As to any matters not expressly provided for herein and in the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the other Loan Documents (including in any other bankruptcy, insolvency enforcement or similar proceedingcollection), the Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and each Person making any payment shall be fully protected in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (iiso acting or refraining from acting) file and prove claims and file other documents necessary or desirable to allow upon the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes written instructions of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, Required Lenders (iv) manage, supervise and otherwise deal with the Collateral, (v) take or such other action as is necessary number or desirable to maintain the perfection and priority percentage of the Liens created or purported Lenders as shall be necessary, pursuant to be created by the terms in the Loan Documents), (vi) except as may and, unless and until revoked in writing, such instructions shall be otherwise specified in any Loan Document, exercise all remedies given to Agent binding upon each Lender and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements each Letter of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiverCredit Issuer; provided, however, that the Agent hereby appoints, authorizes shall not be required to take any action that (i) the Agent in good faith believes exposes it to liability unless the Agent receives an indemnification and directs each Lender is exculpated in a manner satisfactory to act as collateral sub-agent for Agent it from the Lenders and the Lenders for purposes Letter of the perfection of all Liens Credit Issuers with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens action or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender contrary to this Agreement or any other Person and (iii) shall have no implied functionsLoan Document or applicable law, responsibilities, duties, obligations or other liabilities including any action that may be in violation of the automatic stay under any Loan Documentrequirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) abovemay refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party Borrower, any Subsidiary or any Affiliate of its Subsidiaries any of the foregoing that is communicated to or obtained by GECC the Person serving as Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(c) In performing its functions and duties hereunder and under the other Loan Documents, the Agent is acting solely on behalf of the Lenders and the Letter of Credit Issuers (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. Without limiting the generality of the foregoing:
(i) the Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender, Letter of Credit Issuer or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Agent is not intended to connote any fiduciary duty 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); additionally, each Lender agrees that it will not assert any claim against the Agent based on an alleged breach of fiduciary duty by the Agent in connection with this Agreement and/or the transactions contemplated hereby; and
(ii) nothing in this Agreement or any Loan Document shall require the Agent to account to any Lender for any sum or the profit element of any sum received by the Agent for its own account.
(d) The Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent, and shall apply to their respective activities pursuant to this Agreement. The Agent shall not 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 the Agent acted with gross negligence or willful misconduct in the selection of such sub-agent.
(e) None of any Syndication Agent, any Documentation Agent or any Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder.
(f) 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 Agent (irrespective of whether the principal of any Loan or any reimbursement obligation in respect of a Letter of Credit shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Agent shall have made any demand on the Borrowers) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, disbursements in respect of Letters of Credit and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Letter of Credit Issuers and the Agent allowed in such judicial proceeding; and
(ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, each Letter of Credit and each other Secured Party to make such payments to the Agent and, in the event that the Agent shall consent to the making of such payments directly to the Lenders, the Letter of Credit Issuers or the other Secured Parties, to pay to the Agent any amount due to it, in its capacity as the Agent, under the Loan Documents. Nothing contained herein shall be deemed to authorize the Agent to authorize or consent to or accept or adopt on behalf of any Lender or Letter of Credit Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or Letter of Credit Issuer or to authorize the Agent to vote in respect of the claim of any Lender or Letter of Credit Issuer in any such proceeding.
(g) The provisions of this Article are solely for the benefit of the Agent, the Lenders and the Letter of Credit Issuers, and, except solely to the extent of the Borrowers’ rights to consent pursuant to and subject to the conditions set forth in this Article, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the provisions of this Article.
Appears in 2 contracts
Sources: Loan and Security Agreement (Trade Desk, Inc.), Loan and Security Agreement (Trade Desk, Inc.)
Appointment of Agent. (a) Each Lender and each Issuing Bank hereby appoints GECC ▇▇▇▇▇ Fargo Bank, National Association (together with any successor Agent pursuant to Section 9.79.9) as the Administrative Agent under and the Loan Documents Collateral Agent hereunder and authorizes each such Agent to (i) execute and deliver the Loan Credit Documents and accept delivery thereof on its behalf from any Loan Credit Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to such Agent under such Loan Credit Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion . In furtherance of the Lenders)foregoing, each of the Lenders (including in its capacity as a potential Secured Swap Provider or a Bank Product Provider) hereby irrevocably appoints and is hereby authorized, authorizes the Collateral Agent to (i) act as the disbursing agent of (and collecting agent to hold any security interest created by the Collateral Documents for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of or in trust for) such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of acquiring, holding and enforcing any and all Liens created on Collateral granted by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority any of the Liens created or purported Credit Parties to be created by the Loan Documents, (vi) except as may be otherwise specified in secure any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens Obligations, together with respect to such powers and discretion as are reasonably incidental thereto. In this connection, the CollateralCollateral Agent (and any co-agents, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorneyattorneys-in-fact appointed by the Collateral Agent pursuant to Section 9.4 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and any other Person remedies thereunder at the direction of the Collateral Agent) will be entitled to the benefits of all provisions of this Section 9 (including any LenderSection 9.8(b). Any , as though such Person shall benefit from this Article 9 to co-agents, sub-agents and attorneys-in-fact were the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (iiunder the Credit Documents) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly if set forth in full herein with respect thereto. The provisions of this Section 9 (other than Sections 9.9, 9.10(a) and 9.10(b)) are solely for the Loan Documentsbenefit of the Agents, Agent shall not the Issuing Banks and the Lenders and no Credit Party will have any duty to discloserights as a third party beneficiary of any of the provisions thereof (other than Sections 9.9, 9.10(a) and shall 9.10(b)). In performing its functions and duties hereunder, each Agent will act solely as an agent of the Lenders and does not assume and will not be liable deemed to have assumed any obligation towards or relationship of agency or trust with or for failure to disclose, any information relating to any Loan Party the Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitySubsidiary.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Bioventus Inc.), Credit and Guaranty Agreement (Bioventus Inc.)
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor designates HPS Investment Partners, LLC as its Agent pursuant and irrevocably authorizes it to Section 9.7) as Agent execute and deliver the Loan Documents, binding the Lenders to the terms thereof, take action on such ▇▇▇▇▇▇’s behalf under the Loan Documents and authorizes Agent to (i) execute exercise the powers and deliver to perform the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf duties described therein and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such other powers as are reasonably incidental thereto. Each of the Lenders and each assignee of any of the foregoing hereby irrevocably authorizes the Agent to take such actions on behalf of such Lender or assignee, as applicable, and to exercise such powers as are specifically delegated to the Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. Without limiting the generality of the foregoing, the Agent is hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents, and all such rights and remedies in respect of such Collateral shall be implemented by the Agent.
(b) Without limiting Each Lender further irrevocably authorizes the generality of clause (a) aboveAgent to accept, Agent shall have the sole for and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, any parallel debt obligations with duties that are entirely administrative in naturethe Loan Parties pursuant to which the Agent shall have its own, notwithstanding the use independent right to demand payment of the defined term “Agent”amounts payable by each Loan Party in connection with the Obligations.
(c) The provisions of this Article are solely for the benefit of Agent and the Lenders, no Loan Party shall have any rights as third party beneficiary with respect to any of the provisions hereof. In performing its functions and duties hereunder, Agent shall act solely as agent of the Lenders and assume no obligation toward or relationship of agency or trust with or for Borrower.
(d) Notwithstanding any provision to the contrary elsewhere in this Agreement, (i) prior to granting any material consent, waiver or approval hereunder, the terms “agent”, “Agent” Agent shall first consult with and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes onlyreceive the consent or direction from the Required Lenders, (ii) is the Agent shall not assuming elect to not take any obligation under any Loan Document other than as expressly set forth therein material action hereunder without first consulting with and receiving the direction or any role as agentconsent from the Required Lenders, fiduciary or trustee of or for any Lender or any other Person and (iii) the Required Lenders have the power to direct the Agent in the exercise of its powers and the performance of its duties under the Loan Documents and the Agent agrees to act in accordance with such directions of the Required Lenders; provided that in no event shall have no implied functionsthe Agent be required to comply with any such directions to the extent that the Agent reasonably believes that its compliance with such directions would be unlawful, responsibilitiescould cause the Agent reputational harm, dutiesor for which the Agent does not reasonably believe it is adequately indemnified. In all circumstances, obligations the consent or direction of the Required Lenders may be proved by the written instruction of the Required Lenders, or, in the Agent’s discretion, by e-mail from the Required Lenders or their counsel.
(e) The rights, privileges and immunities of the Agent in this Agreement and the other liabilities under any Loan Documents shall automatically be incorporated by reference into each Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees whether or not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitystated therein.
Appears in 2 contracts
Sources: Credit Agreement (Team Inc), First Lien Term Loan Credit Agreement (Team Inc)
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor designates ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Securities as its Agent pursuant and irrevocably authorizes it to Section 9.7) as Agent execute and deliver the Loan Documents, binding the Lenders to the terms thereof, take action on such ▇▇▇▇▇▇’s behalf under the Loan Documents and authorizes Agent to (i) execute exercise the powers and deliver to perform the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf duties described therein and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such other powers as are reasonably incidental thereto. Each of the Lenders and each assignee of any of the foregoing hereby irrevocably authorizes the Agent to take such actions on behalf of such Lender or assignee, as applicable, and to exercise such powers as are specifically delegated to the Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. Without limiting the generality of the foregoing, the Agent is hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents, and all such rights and remedies in respect of such Collateral shall be implemented by the Agent.
(b) Without limiting Each Lender further irrevocably authorizes the generality of clause (a) aboveAgent to accept, Agent shall have the sole for and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, any parallel debt obligations with duties that are entirely administrative in naturethe Loan Parties pursuant to which the Agent shall have its own, notwithstanding the use independent right to demand payment of the defined term “Agent”amounts payable by each Loan Party in connection with the Obligations.
(c) The provisions of this Article are solely for the benefit of Agent and the Lenders, no Loan Party shall have any rights as third party beneficiary with respect to any of the provisions hereof. In performing its functions and duties hereunder, Agent shall act solely as agent of the Lenders and assume no obligation toward or relationship of agency or trust with or for Borrower.
(d) Notwithstanding any provision to the contrary elsewhere in this Agreement, (i) prior to granting any material consent, waiver or approval hereunder, the terms “agent”, “Agent” Agent shall first consult with and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes onlyreceive the consent or direction from the Required Lenders, (ii) is the Agent shall not assuming elect to not take any obligation under any Loan Document other than as expressly set forth therein material action hereunder without first consulting with and receiving the direction or any role as agentconsent from the Required Lenders, fiduciary or trustee of or for any Lender or any other Person and (iii) the Required Lenders have the power to direct the Agent in the exercise of its powers and the performance of its duties under the Loan Documents and the Agent agrees to act in accordance with such directions of the Required Lenders; provided that in no event shall have no implied functionsthe Agent be required to comply with any such directions to the extent that the Agent reasonably believes that its compliance with such directions would be unlawful, responsibilitiescould cause the Agent reputational harm, dutiesor for which the Agent does not reasonably believe it is adequately indemnified. In all circumstances, obligations the consent or direction of the Required Lenders may be proved by the written instruction of the Required Lenders, or, in the Agent’s discretion, by e-mail from the Required Lenders or their counsel.
(e) The rights, privileges and immunities of the Agent in this Agreement and the other liabilities under any Loan Documents shall automatically be incorporated by reference into each Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees whether or not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitystated therein.
Appears in 2 contracts
Sources: Second Lien Term Loan Credit Agreement (Team Inc), Second Lien Term Loan Credit Agreement (Team Inc)
Appointment of Agent. (a) Each Lender and each Issuing Bank hereby appoints GECC ▇▇▇▇▇ Fargo Bank, National Association (together with any successor Agent pursuant to Section 9.79.9) as the Administrative Agent under and the Loan Documents Collateral Agent hereunder and authorizes each such Agent to (i) execute and deliver the Loan Credit Documents and accept delivery thereof on its behalf from any Loan Credit Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to such Agent under such Loan Credit Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion . In furtherance of the Lenders)foregoing, each of the Lenders (including in its capacity as a potential Secured Swap Provider or a Bank Product Provider) hereby irrevocably appoints and is hereby authorized, authorizes the Collateral Agent to (i) act as the disbursing agent of (and collecting agent to hold any security interest created by the Collateral Documents for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of or in trust for) such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of acquiring, holding and enforcing any and all Liens created on Collateral granted by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority any of the Liens created or purported Credit Parties to be created by the Loan Documents, (vi) except as may be otherwise specified in secure any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection Obligations or any of all Liens the Oyster Credit Parties to secure any of the Oyster Obligations, together with respect to such powers and discretion as are reasonably incidental thereto. In this connection, the CollateralCollateral Agent (and any co-agents, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorneyattorneys-in-fact appointed by the Collateral Agent pursuant to Section 9.4 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and any other Person remedies thereunder at the direction of the Collateral Agent) will be entitled to the benefits of all provisions of this Section 9 (including any LenderSection 9.8(b). Any , as though such Person shall benefit from this Article 9 to co-agents, sub-agents and attorneys-in-fact were the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (iiunder the Credit Documents) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly if set forth in full herein with respect thereto. The provisions of this Section 9 (other than Sections 9.9, 9.10(a) and 9.10(b)) are solely for the Loan Documentsbenefit of the Agents, Agent shall not the Issuing Banks and the Lenders and no Credit Party will have any duty to discloserights as a third party beneficiary of any of the provisions thereof (other than Sections 9.9, 9.10(a) and shall 9.10(b)). In performing its functions and duties hereunder, each Agent will act solely as an agent of the Lenders and does not assume and will not be liable deemed to have assumed any obligation towards or relationship of agency or trust with or for failure to disclose, any information relating to any Loan Party the Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitySubsidiary.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Bioventus Inc.), Credit and Guaranty Agreement (Bioventus Inc.)
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.79.9) as Agent under the Loan Debt Documents and authorizes the Agent to (ia) execute and deliver the Loan Debt Documents and accept delivery thereof on its behalf from any Loan PartyParties, (iib) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to the Agent under such Loan Debt Documents and (iiic) exercise such powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Agent and Lenders and none of Loan Parties nor any other person shall have any rights as a third party beneficiary of any of the provisions of this Article 9. In performing its functions and duties under this Agreement and the other Debt Documents, Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Loan Party or any other person. Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the other Debt Documents. The duties of Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to have, by reason of this Agreement, any other Debt Document or otherwise a fiduciary or trustee relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Debt Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its affiliates in any capacity.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Debt Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person person making any payment in connection with any Loan Debt Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any proceeding described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens liens created by the Loan Debt Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens liens created or purported to be created by the Loan Debt Documents, (vi) except as may be otherwise specified in any Loan Debt Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Debt Documents, applicable Requirements of Law law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Debt Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Party with, and cash and Cash Equivalents cash equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Debt Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person person (including any Lender). Any such Person person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, If Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (iincluding failure to act) is acting solely on behalf of the Lenders, in connection with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Debt Document, then Agent shall be entitled to refrain from such act or taking such action unless and (iii) until Agent shall have no implied functionsreceived instructions from Requisite Lenders or all affected Lenders, responsibilities, duties, obligations or other liabilities under any Loan Documentas the case may be, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not incur liability to any person by reason of so refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Debt Document (a) if such action would, in the opinion of Agent, be contrary to law or any Debt Document, (b) if such action would, in the opinion of Agent, expose Agent to any potential liability under any law, statute or regulation or (c) if Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any duty to discloseright of action whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under any other Debt Document in accordance with the instructions of Requisite Lenders or all affected Lenders, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityas applicable.
Appears in 2 contracts
Sources: Loan and Security Agreement (Syndax Pharmaceuticals Inc), Loan and Security Agreement (Syndax Pharmaceuticals Inc)
Appointment of Agent. Each Buyer irrevocably appoints and authorizes the Agent to act on behalf of such Buyer or holder under this Agreement and the other Transaction Documents and to exercise such powers hereunder and thereunder as are specifically delegated to Agent by the terms hereof and thereof, together with such powers as may be reasonably incidental thereto, including without limitation the power to execute or authorize the execution of financing or similar statements or notices, and other documents. In performing its functions and duties under this Agreement, the Agent shall act solely as agent of the Buyers and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for the Seller or any other Person.
(a) Each Lender hereby appoints GECC (together The Agent shall have no duties or responsibilities except those expressly set forth herein, and shall not, by reason of this Agreement or otherwise, have a fiduciary relationship with any successor Agent Buyer (and no implied covenants or other obligations shall be read into this Agreement against the Agent). None of Agent, its Affiliates nor any of their respective directors, officers, employees or agents shall be liable to any Buyer for any action taken or omitted to be taken by it or them under this Agreement or any document executed pursuant hereto, or in connection herewith or therewith with the consent or at the request of the Required Buyers (or all of the Buyers for those acts requiring consent of all of the Buyers) (except for its or their own willful misconduct or gross negligence), nor be responsible for or have any duties to Section 9.7ascertain, inquire into or verify (A) as Agent under any recitals or warranties made by the Loan Documents and authorizes Agent to (i) execute and deliver Seller or any Affiliate of the Loan Documents and accept delivery Seller, or any officer thereof on its behalf from any Loan Partycontained herein or therein, (iiB) take such action on the effectiveness, enforceability, validity or due execution of this Agreement or any document executed pursuant hereto or any security thereunder, (C) the performance by the Seller of its behalf obligations hereunder or thereunder, or (D) the satisfaction of any condition hereunder or thereunder, including without limitation in connection with the making of any Transaction. The Agent and its Affiliates shall be entitled to rely upon any certificate, notice, document or other communication (including any cable, telegraph, telex, facsimile transmission or oral communication) believed by it to be genuine and correct and to exercise all rightshave been sent or given by or on behalf of a proper person. The Agent may employ agents and may consult with legal counsel, powers independent public accountants and remedies other experts selected by it and perform shall not be liable to the duties Buyers (except as are expressly delegated to Agent under money or property received by them or their authorized agents), for the negligence or misconduct of any such Loan Documents and (iii) exercise agent selected by it with reasonable care or for any action taken or omitted to be taken by it in good faith in accordance with the advice of such powers as are reasonably incidental theretocounsel, accountants or experts.
(b) Without limiting Except as otherwise expressly provided herein, whenever the generality Agent is authorized and empowered hereunder on behalf of clause the Buyers to give any approval or consent, or to make any request, or to take any other action on behalf of the Buyers (a) aboveincluding without limitation the exercise of any right or remedy hereunder or under the other Transaction Documents), the Agent shall have the sole and exclusive right and authority (be required to the exclusion of the Lenders)give such approval or consent, and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment request or to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action only when so requested in writing by the Required Buyers or the Buyers, as is necessary or desirable to maintain applicable hereunder. Action that may be taken by the perfection and priority Required Buyers, any other specified Percentage of the Liens created Buyers or purported to be created by all of the Loan DocumentsBuyers, (vi) except as the case may be otherwise specified in any Loan Document(as provided for hereunder) may be taken (i) pursuant to a vote of the requisite percentages of the Buyers as required hereunder at a meeting (which may be held by telephone conference call), exercise provided that Agent exercises good faith, diligent efforts to give all remedies given to Agent and of the other Lenders with respect Buyers reasonable advance notice of the meeting, or (ii) pursuant to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, written consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection requisite percentages of the Buyers as required hereunder, provided that all Liens with respect to of the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, Buyers are given reasonable advance notice of the requests for such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agentconsent.
(c) Under Except as otherwise expressly provided under this Agreement or in any of the Loan Documentsother Transaction Documents and subject to the terms hereof, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacity.will take
Appears in 2 contracts
Sources: Master Repurchase Agreement (Pultegroup Inc/Mi/), Master Repurchase Agreement (Pultegroup Inc/Mi/)
Appointment of Agent. (a) Each Lender The Owner Trustee, each Holder and the Bank Lenders hereby appoints GECC (together with any successor designate and appoint the Agent pursuant as the agent for each such Person under this Agreement and the other Operative Agreements to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf of such Person under the provisions of Section 6.9 of this Agreement, to receive notices, documents and other items under the Operative Agreements (including without limitation pursuant to Sections 2.3(b), 2.8, 3.2(l), 3.3(m), 4.1(a), 4.2(c), 5.3, 5.4, 5.6 and 5.8 of this Agreement and Sections 20 and 22.1 of the Lease) and to take such other action, exercise all rights, such powers and remedies and perform the such duties as are expressly delegated to the Agent under by the terms of this Agreement and the other Operative Agreements, together with such Loan Documents and (iii) exercise such other powers as are reasonably incidental thereto.
. The Owner Trustee and each Holder, as applicable, hereby designate and appoint the Agent as the collateral agent for each such Person under this Agreement and the other Operative Agreements to accept and hold the Liens (a) securing the obligations, agreements and covenants of the Owner Trustee in favor of each Holder under the Operative Agreements and granted by the Owner Trustee in favor of the Agent for the benefit of the Holders under the Loan Agreement and (b) Without limiting securing the generality obligations, agreements and covenants of clause (a) above, Agent shall have the sole Lessee under the Lease and exclusive right and authority the other Operative Agreements (to the exclusion extent such obligations run in favor of the Lenders)Owner Trustee or any Holder) granted by the Lessee in favor of the Owner Trustee for the benefit of the Holders under the Lease and assigned by the Owner Trustee in favor of the Agent pursuant to various Uniform Commercial Code financing statements. The Agent hereby accepts such appointments and agrees, and is hereby authorizedpromptly upon receipt by the Agent, to forward copies of all such notices, documents and other items (ireferenced in the first sentence of this Section 10.2) act as to the disbursing Owner Trustee, the Holders, the Lenders and collecting agent the Bank Lenders. The Agent further agrees for the Lenders with respect to all payments and collections arising in connection with benefit of the Loan Documents (including in any other bankruptcyOwner Trustee, insolvency or similar proceeding), each Holder and each Person making any payment in connection with any Loan Document Lender to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender)parties respecting Uniform Commercial Code filings pertaining to the Equipment and other filings evidencing Liens on the Equipment, (iii) act to the extent such Uniform Commercial Code filings and other filings relate to Liens in favor of any such party and are made in connection with the Overall Transaction. The preceding sentence is intended as collateral agent for Agent an agreement among the Agent, the Owner Trustee, each Holder and each Lender for and shall in no way impact or diminish the obligations of the Lessee under the Operative Agreements. For purposes of this Section 10.2, the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority Lenders hereby reaffirm their appointment of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan DocumentsAgreement, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender reaffirms its acceptance of such appointment. The parties to act as collateral sub-agent for this Agreement further agree that any successor Agent and the Lenders for purposes of the perfection of all Liens with respect appointed pursuant to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not Agreement shall also be subject to assert any claim against Agent based on approval by the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityMajority Holders.
Appears in 2 contracts
Sources: Participation Agreement (Coca Cola Bottling Co Consolidated /De/), Participation Agreement (Coca Cola Bottling Co Consolidated /De/)
Appointment of Agent. (a) Each Lender 2.1. The Merchant hereby appoints GECC the Agent, and the Agent hereby agrees to serve, as the Merchant’s exclusive agent for the purposes conducting the Sale in accordance with the terms and conditions of this Agreement.
2.2. The Merchant shall apply to the Bankruptcy Court for an order approving this Agreement and the APA in their entirety and the transactions contemplated therein (together with any successor Agent pursuant the “Sale Order”). The Sale Order shall provide, in a form reasonably satisfactory to Section 9.7) as Agent under the Loan Documents Merchant and authorizes Agent to Agent, inter alia, that (i) execute this Agreement and deliver the Loan Documents APA (and accept delivery thereof on its behalf from any Loan Party, each of the transactions contemplated thereby) are approved in their entirety; (ii) Merchant and Agent shall be authorized to continue to take such action on its behalf any and all actions as may be necessary or desirable to exercise all rights, powers implement this Agreement and remedies the APA and perform each of the duties as are expressly delegated to Agent under such Loan Documents and transactions contemplated thereby; (iii) exercise such powers as are reasonably incidental thereto.
Agent shall be entitled to sell all Merchandise hereunder free and clear of all liens, claims or encumbrances thereon, with any presently existing liens encumbering all or any portion of the Merchandise or the Proceeds attaching only to the Guaranteed Amount and other amounts to be received by Merchant under this Agreement; (biv) Without limiting the generality of clause (a) above, Agent shall have the sole right to use the Stores and exclusive right all related Store services, furniture, fixtures, equipment and authority other assets of Merchant as designated hereunder for the purpose of conducting the Sale, free of any interference from any entity or person subject to compliance with the Sale Order; (v) Agent, as agent for Merchant, is authorized to conduct, advertise, post signs and otherwise promote the exclusion Sale as a “going-out-of-business,” “store closing,” “bankruptcy,” or similarly themed sale (including, without limitation, by means of media advertising, A-frame, interior and exterior banners and similar signage and use of sign walkers), without further consent of any person, in accordance with the Lendersterms and conditions of this Agreement and the Sale Order (as the same may be modified and approved by the Bankruptcy Court), and is hereby authorizedwithout further compliance with applicable federal, state or local laws governing, inter alia, the conduct of store closing sales (the “Liquidation Sale Laws”), other than those designed to protect public health and safety; (ivi) act as Agent shall be granted a limited license and right to use until the disbursing Sale Termination Date the trade names, logos and collecting agent for the Lenders with respect customer and mailing lists relating to all payments and collections arising used in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes operation of the perfection Stores, solely for the purpose of all Liens created by advertising the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal Sale in accordance with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority terms of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and this Agreement; (vii) execute all utilities, landlords, creditors and all persons acting for or on their behalf shall not interfere with or otherwise impede the conduct of the Sale, institute any amendment, consent action in any court (other than in the Bankruptcy Court) or waiver under before any administrative body which in any way directly or indirectly interferes with or obstructs or impedes the Loan Documents on behalf conduct of any Lender that has consented in writing the Sale; (viii) the Bankruptcy Court shall retain jurisdiction over the parties to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent enforce this Agreement and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. APA; (ix) Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates claims against the Merchant other than as expressly provided for in any capacity.this Agreement; and
Appears in 2 contracts
Sources: Asset Purchase Agreement, Agency Agreement
Appointment of Agent. (a) Each Lender hereby of the Secured Parties appoints GECC (together with any successor Credit Suisse to act, and Credit Suisse agrees to act, as Agent for the Secured Parties pursuant to Section 9.7) as Agent under the terms of this Agreement and the other Term Loan Security Documents and authorizes Agent to (i) execute and deliver enter into this Agreement, the Intercreditor Agreement and the other Term Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Security Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable instruments relating to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent this Agreement and the other Lenders with respect Term Loan Security Documents and (a) to take actions on its behalf that are expressly permitted under the provisions of this Agreement and the other Term Loan Security Documents and all other instruments or agreements relating hereto or thereto and (b) to exercise such powers and perform such duties as are, in each case, expressly delegated to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” hereof and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee thereof. By acceptance of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of this Agreement, each Secured Party that is not a party to this Agreement shall be deemed to have consented to the Loan Documents, hereby waives appointment and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly authorization set forth in the Loan Documentsimmediately preceding sentence. THE AGENT HAS CONSENTED TO SERVE AS AGENT HEREUNDER ON THE EXPRESS UNDERSTANDING, Agent shall not have any duty to discloseAND THE SECURED PARTIES, and shall not be liable for failure to discloseBY ACCEPTING THE BENEFITS OF THIS AGREEMENT, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitySHALL BE DEEMED TO HAVE AGREED, THAT THE AGENT SHALL HAVE NO DUTY AND SHALL OWE NO OBLIGATION OR RESPONSIBILITY (FIDUCIARY OR OTHERWISE), REGARDLESS OF WHETHER AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, TO THE SECURED PARTIES, OTHER THAN THE DUTY TO PERFORM ITS EXPRESS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER TERM LOAN SECURITY DOCUMENTS IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, SUBJECT IN ALL EVENTS TO THE PROVISIONS OF THIS AGREEMENT LIMITING THE RESPONSIBILITY OR LIABILITY OF THE AGENT HEREUNDER.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Neiman Marcus Group Inc), Pledge and Security Agreement (Neiman Marcus, Inc.)
Appointment of Agent. (a) Each Lender The Guarantor hereby irrevocably designates, appoints GECC (together with any successor Agent pursuant and empowers Lord, Bissell & Brook LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its designee, appointee and agent to Section 9.7) as Agent under the Loan Documents receive, accept and authorizes Agent to (i) execute acknowledge for and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders)behalf, and is hereby authorizedits properties, to (i) act as the disbursing assets and collecting agent for the Lenders revenues, service of any and all legal process, summons, notices and documents which may be served in any action, suit or proceeding against it with respect to all payments and collections its obligations or liabilities under, or any other matter arising out of or in connection with, this Agreement that is brought in any United States federal court or New York state court, in each case located in the Borough of Manhattan, The City of New York, which may be made on such designee, appointee and agent in accordance with legal procedures prescribed for such courts. If for any reason such designee, appointee and agent shall cease to be available to act as such, the Loan Documents Guarantor hereby agrees to designate a new designee, appointee and agent in The City of New York on the terms and for the purposes of this Section. The Guarantor hereby further irrevocably agrees to the service of any and all legal process, summons, notices and documents in any such action, suit or proceeding by serving a copy thereof upon the relevant agent for service of process referred to in this Section (including whether or not the appointment of such agent shall for any reason prove to be ineffective or such agent shall accept or acknowledge such service) or by mailing copies thereof by registered or certified air mail, first class, postage prepaid, to the Guarantor at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇. The Guarantor hereby further agrees that service of process as aforementioned shall be deemed in every respect effective service of process upon it in any such action, suit or proceeding and that the failure of any such designee, appointee and agent to give any notice of such service to it shall not impair or affect in any way the validity of such service or any judgment rendered in any action, suit or proceeding based thereon. Nothing herein shall in any way be deemed to limit the ability of any person to serve any such legal process, summons, notices and documents in any other bankruptcymanner permitted by applicable law or to obtain jurisdiction over the Guarantor or bring actions, insolvency suits or similar proceeding)proceedings against the Guarantor in any jurisdiction, and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agentmanner, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, permitted by applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agentlaw.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacity.
Appears in 2 contracts
Sources: Registration Rights Agreement (Kingsway Financial Services Inc), Registration Rights Agreement (Kingsway Financial Services Inc)
Appointment of Agent. (a) Each Lender hereby appoints GECC HTGC (together with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, Loan and Security Agreement - Amedica that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC HTGC or any of its Affiliates in any capacity.
Appears in 2 contracts
Sources: Loan and Security Agreement, Loan and Security Agreement (AMEDICA Corp)
Appointment of Agent. (a) Each Lender and each Issuing Bank hereby appoints GECC DBNY (together with any successor Agent pursuant to Section 9.79.9) as the Administrative Agent under and the Loan Documents Collateral Agent hereunder and authorizes each such Agent to (i) execute and deliver the Loan Credit Documents and accept delivery thereof on its behalf from any Loan Credit Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to such Agent under such Loan Credit Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion . In furtherance of the Lenders)foregoing, each of the Lenders (including in its capacity as a potential Secured Swap Provider or a Bank Product Provider) hereby irrevocably appoints and is hereby authorized, authorizes the Collateral Agent to (i) act as the disbursing agent of (and collecting agent to hold any security interest created by the Collateral Documents for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of or in trust for) such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of acquiring, holding and enforcing any and all Liens created on Collateral granted by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority any of the Liens created or purported Credit Parties to be created by the Loan Documents, (vi) except as may be otherwise specified in secure any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens Obligations, together with respect to such powers and discretion as are reasonably incidental thereto. In this connection, the CollateralCollateral Agent (and any co-agents, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorneyattorneys-in-fact appointed by the Collateral Agent pursuant to Section 9.4 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and any other Person remedies thereunder at the direction of the Collateral Agent), will be entitled to the benefits of all provisions of this Section 9 (including any LenderSection 9.8(b). Any , as though such Person shall benefit from this Article 9 to co-agents, sub-agents and attorneys-in-fact were the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (iiunder the Credit Documents) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly if set forth in full herein with respect thereto. The provisions of this Section 9 are solely for the Loan Documentsbenefit of the Agents, Agent shall not the Issuing Banks and the Lenders and no Credit Party will have any duty to discloserights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties hereunder, each Agent will act solely as an agent of the Lenders and shall does not assume and will not be liable deemed to have assumed any obligation towards or relationship of agency or trust with or for failure to disclose, any information relating to any Loan Party the Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitySubsidiary.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Artivion, Inc.), Credit and Guaranty Agreement (Cryolife Inc)
Appointment of Agent. (a) Each Lender hereby appoints GECC Jefferies (together with any successor Agent pursuant to Section 9.77 of this Exhibit B) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to AgentAgent as agent for each Lender, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender the Secured Parties for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the CollateralCollateral as permitted pursuant to the Loan Agreement, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the each Loan Parties Party and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a any Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 Exhibit B to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Without prejudice to the generality of the foregoing, in respect of any payment of interest on any Term Loan which is received by the Agent, the Agent shall act solely in an administrative capacity in passing the relevant amount(s) of any such payments to the relevant Lender(s). Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC Jefferies or any of its Affiliates in any capacity.
Appears in 2 contracts
Sources: Loan and Security Agreement (LumiraDx LTD), Loan and Security Agreement (LumiraDx LTD)
Appointment of Agent. (a) Each Lender hereby appoints GECC (together In order to administer efficiently the determination of certain matters under this Agreement and the Plan of Arrangement, Agent, by virtue of the approval of the Plan of Arrangement, is irrevocably constituted and appointed the exclusive and lawful agent and attorney-in-fact for the Securityholders with respect to all matters under this Agreement, the Plan of Arrangement and the Escrow Agreement, including to act for and on behalf of the Securityholders in connection with any successor claim for indemnification under Article 11 (Indemnification). Agent pursuant hereby accepts such appointment and undertakes to Section 9.7) act in the best interest of the Securityholders in the fulfillment of its role as Agent. The Agent under shall not take any action that will adversely affect one Securityholder disproportionally from the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental theretoothers.
(b) Without limiting the generality of clause (a) abovethe foregoing, Agent shall have the sole and exclusive right full power and authority (acting in each Securityholder’s name, place and stead, and on its behalf, to make all decisions and take all actions relating to the exclusion of the LendersSecurityholders’ respective rights (except for Dissent Rights, as applicable), obligations and is hereby authorizedremedies under this Agreement, the Plan of Arrangement and the Escrow Agreement, including to (i) act as the disbursing receive and collecting agent for the Lenders with respect to all payments make payments, (ii) receive and collections arising in connection with the Loan Documents send notices or other communications (including in notices of termination and any other bankruptcy, insolvency or similar proceeding), and each Person making any payment notices in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, claim for indemnification under Article 11 (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such LenderIndemnification)), (iii) act as collateral agent receive, sign and deliver documents, including any ancillary agreements (except for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents Shareholders’ respective rights to sign a support agreement), waivers, certificates and all other purposes stated thereindocuments that Agent deems necessary or appropriate, (iv) managereceive, supervise sign and otherwise deal with the Collateraldeliver amendments or modifications to such documents, (v) take such other action as is necessary exercise, enforce or desirable to maintain the perfection and priority of the Liens created waive rights or purported to be created by the Loan Documentsconditions, (vi) except as give releases and discharges, (vii) make claims for indemnification on behalf of the Securityholders, (viii) defend against any claim for indemnification by any Purchaser Indemnified Party and any Third Party Claim in respect of which a claim for indemnification has been made, (ix) receive service of process in connection with all claims under this Agreement, the Plan of Arrangement and the Escrow Agreement, (x) provide instructions under the Escrow Agreement, and (xi) make all decisions relating to the determination of the Net Working Capital and the Net Indebtedness and any adjustment to the Purchase Price. Agent may take all other actions which are reasonably incidental to these powers or may otherwise be otherwise specified required or advisable in any Loan Document, exercise all remedies given to Agent connection with the consummation of the Arrangement and the other Lenders with respect to transactions contemplated by this Agreement, the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements Plan of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent Arrangement and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by AgentEscrow Agreement.
(c) Under Except in respect of the Loan Documentsright of Shareholders to exercise Dissent Rights in accordance with Section 4.1 of the Plan of Arrangement and the Shareholders’ respective rights to sign a support agreement, all references in this Agreement and the Escrow Agreement to decisions, actions, notices, consents or instructions to be taken or given by the Securityholders or any one of them, as the case may be, shall be deemed taken or given by the Securityholders or any one of them, as the case may be, if such decisions, actions, notices, consents or instructions are taken or given by Agent and any such decision, action, notice, consent and instruction shall be final, binding and conclusive upon all Securityholders. All references in this Agreement and the Escrow Agreement to decisions, actions, notices, consents and instructions to be taken or given by the Purchaser Parties and directed to all Securityholders or any one of them, as the case may be, shall be deemed directed to all Securityholders or any one of them, as the case may be, if such decisions, actions, notices, consents or instructions are directed by the Purchaser Parties to Agent.
(d) Notwithstanding anything to the contrary set forth herein, no payment, notice, communication, receipt, signature or delivery of documents, amendment or modification of such documents, exercise, enforcement or waiver of rights or conditions, release or discharge, claim for indemnification, defence, service of process, instruction, decision or other action shall be ineffective by reason only of it having been made or given to or by a Securityholder, as the case may be, directly if the Purchaser Parties and such Securityholder consent by virtue of not objecting to such dealings without the intermediary of Agent.
(e) the Purchaser Parties shall be entitled to deal only with Agent in respect of all matters related to the Securityholders under this Agreement, the Plan of Arrangement and the Escrow Agreement, including to (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” receive and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes onlymake payments, (ii) is not assuming receive and send notices or other communications (including notices of termination and any obligation notices in connection with any claim for indemnification under any Loan Document other than as expressly set forth therein or any role as agentArticle 11), fiduciary or trustee of or for any Lender or any other Person and (iii) receive, sign and deliver documents, including any ancillary agreements, waivers, certificates and all other documents that the Purchaser Parties deem necessary or appropriate, (iv) receive, sign and deliver amendments or modifications to such documents, (v) exercise, enforce or waive rights or conditions, (vi) give releases and discharges, (vii) make claims for indemnification against the Securityholders, (viii) defend against any claim for indemnification by any Securityholder Indemnified Party, (ix) receive service of process in connection with all claims under this Agreement, the Plan of Arrangement and the Escrow Agreement, (x) provide instructions under the Escrow Agreement, and (xi) make all decisions relating to the determination of the Net Working Capital and the Net Indebtedness and any adjustment to the Purchase Price. The Purchaser Parties shall be entitled to rely upon any decision, action, notice, consent or instruction provided to the Purchaser Parties by Agent acting within the scope of its authority.
(f) Agent shall establish an Expense Reserve Holdback to be deposited in an interest-bearing account (or other interest-bearing instruments or deposits as selected by Agent, in its sole discretion). Agent shall maintain the Expense Reserve Holdback for as long as Agent deems necessary or appropriate and upon completion of performing its duties and functions under this Agreement and the Plan of Arrangement, shall pay to the Securityholders any remaining portion of the Expense Reserve Holdback.
(g) Agent shall, at the expense of the Securityholders, be entitled to engage such counsel, experts and other agents and consultants as Agent shall deem necessary in connection with exercising its duties and performing its functions hereunder and (in the absence of bad faith on the part of Agent) shall be entitled to conclusively rely on the opinions and advice of such Persons. Agent shall have no implied functionsliability to any of the Securityholders for any actions taken by it in good faith in its capacity as Agent (and any action done or omitted pursuant to advice of counsel, responsibilities, duties, obligations expert or other liabilities under agent or consultant shall be conclusive evidence of such good faith). Each Securityholder shall jointly (and not solidarily) indemnify Agent and hold Agent harmless against any Loan DocumentDamages and shall reimburse Agent for any out-of-pocket expenses incurred without gross negligence or bad faith on the part of Agent and arising out of or in connection with the acceptance or administration of Agent’s duties and functions hereunder, and including each Lender, by accepting the benefits Securityholder’s respective share of the Loan Documentsreasonable fees and expenses of any counsel, hereby waives and agrees not expert or other agent or consultant retained by Agent in each case to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth extent that the amount then held in the Loan DocumentsExpense Reserve Holdback is not sufficient for such purpose.
(h) The provisions of this Section 12.6 are independent and severable, Agent shall not have any duty to disclose, are irrevocable and shall not be liable for failure to disclose, enforceable notwithstanding any information relating to rights or remedies that any Loan Party or any Securityholder may have in connection with the transactions contemplated by this Agreement and the Plan of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityArrangement.
Appears in 2 contracts
Sources: Arrangement Agreement, Arrangement Agreement (Vasco Data Security International Inc)
Appointment of Agent. Solicitation by the Agent of Offers to Purchase; Sales of Notes to a Purchaser.
(a) Each Lender Subject to the terms and conditions set forth herein, the Company hereby appoints GECC the Agents to act as its agents for the purpose of soliciting offers to purchase all or part of the Notes from the Company upon the terms set forth in the Prospectus, as amended or supplemented from time to time, and in the Procedures. The Company shall have the right to appoint additional persons to act as its agents for such purposes upon three days prior notice to the Agents then acting hereunder so long as any such additional persons become parties to this Agreement upon the same terms and conditions as shall then be applicable to such Agents. So long as this Agreement shall remain in effect with respect to any Agents, the Company shall not, without the consent of such Agents, solicit offers to purchase Notes otherwise than through one of such Agents, except as contemplated by Section 1(g) hereof and except that nothing contained herein shall be construed to prevent the Company from selling Notes at any time (together with any successor Agent x) in a firm commitment underwriting pursuant to Section 9.7an underwriting agreement which does not provide for a continuous offering of such Notes or (y) as Agent under directly to investors other than the Loan Documents Purchasers, and authorizes Agent no commission shall be payable to (i) execute the Agents with respect to any such sales. The Company also reserves the right to sell Notes through agents other than pursuant to this Agreement where offers to purchase are received through such agents on an unsolicited basis. Settlement of such sales will be on substantially the same terms and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties conditions as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental theretocontained herein, including commissions.
(b) Without limiting On the generality basis of clause (a) abovethe representations and warranties set forth herein, Agent shall have the sole and exclusive right and authority (but subject to the exclusion terms and conditions set forth herein, each Agent agrees to use its reasonable efforts, as agent of the Lenders)Company, to solicit offers to purchase Notes from the Company upon the terms set forth in the Prospectus, as amended or supplemented from time to time, and is hereby authorizedin the Procedures. Subject to the provisions of Section 1(c) and to the Procedures, to (i) act as the disbursing and collecting agent offers for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims purchase of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as Notes may be otherwise specified solicited at such times and in any Loan Document, exercise all remedies given such amounts as each Agent may from time to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agenttime deem advisable.
(c) Under The Company reserves the Loan Documentsright, in its sole discretion, to suspend solicitation of offers to purchase Notes from the Company at any time for any period of time or permanently. Upon receipt of at least one business day's prior notice from the Company, the Agents forthwith will suspend their solicitation of offers to purchase Notes from the Company until such time as the Company has advised the Agents that such solicitation may be resumed.
(d) Each Agent (i) will communicate to the Company, orally or in writing, each offer to purchase Notes from the Company that is acting solely on behalf received by such Agent as agent of the LendersCompany and that is not rejected by such Agent as provided below. The Company will have the sole right to accept offers to purchase Notes from the Company and may reject any such offer, in whole or in part, for any reason. Each Agent may, without notice to the Company, in its discretion reasonably exercised, reject any offer to purchase Notes from the Company that is received by such Agent, in whole or in part, and any such rejection shall not be deemed a breach of such Agent's agreements contained herein.
(e) The Company agrees to pay each Agent a commission, on the Closing Date with respect to each sale of Notes by the Company as a result of a solicitation made by such Agent, in an amount equal to that percentage specified in Schedule I hereto of the aggregate principal amount of each Note sold by the Company. Such commission shall be payable as specified in the Procedures. The commission rates may be amended from time to time by written agreement of the Company and the Agents. The Terms Agreement may specify any concessions allowed or reallowed or paid to dealers.
(f) Each of you agrees, with duties that are entirely administrative respect to any Note denominated in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document a currency other than as expressly set forth therein or any role U.S. dollars, as agent, fiduciary directly or trustee of or for any Lender or any other Person indirectly, not to solicit offers to purchase, and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities as principal under any Loan DocumentTerms Agreement or otherwise, directly or indirectly, not to offer, sell or deliver, such Note in, or to residents of, the country issuing such currency (or, if such Note is denominated in a composite currency, in any country issuing a currency comprising a portion of such composite currency), except as permitted by applicable law.
(g) Subject to the terms and conditions stated herein, whenever the Company and you determine that the Company shall sell Notes directly to any or all of you acting as principal (the "Purchaser"), each such sale of Notes shall be made in accordance with the terms of this Agreement and any supplemental agreement relating thereto between the Company and the Purchaser. Each such supplemental agreement (which shall be in the form of Annex B or such other form as may be agreed upon by the Company and the Purchaser) is herein referred to as a "Terms Agreement". The Purchaser's commitment to purchase Notes pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall describe the Notes to be purchased by the Purchaser pursuant thereto, specify the maturity and principal amount of such Notes, the price to be paid to the Company for such Notes, the rate at which interest will be paid on the Notes, the Closing Date for such Notes, the place of delivery of the Notes and payment therefor, the method of payment and any modification of the requirements for the delivery of the opinions of counsel, the certificates from the Company or its officers, and each Lenderthe letter from the Company's independent public accountants, by accepting pursuant to Section 7(c). Such Terms Agreement shall also specify the benefits period of time referred to in Section 5(l). The Terms Agreement may specify the terms upon which any Agent may resell any Notes to other dealers. Delivery of the Loan Documentscertificates if the Notes are certificated, hereby waives or entry into the books of the Depository Trust Company if the Notes are book-entry Notes, for Notes sold to the Purchaser pursuant to any Terms Agreement shall be made as agreed to between the Company and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except Purchaser as expressly set forth in the Loan Documentsrespective Terms Agreement, Agent shall not have any duty later than the Closing Date set forth in such Terms Agreement, against payment of funds to disclose, the Company in the amount due to the Company for such Notes by the method and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitythe form set forth in the respective Terms Agreement.
Appears in 1 contract
Sources: Distribution Agreement (Ashland Inc)
Appointment of Agent. (a) Each Lender The Purchasers hereby appoints GECC (together with any successor Agent pursuant to Section 9.7) designate and appoint K▇▇▇ ▇▇▇▇▇▇▇▇ International, LLC as Agent under to act as specified herein and in any other documents delivered pursuant hereto. Each Purchaser hereby authorizes the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof take such action as agent on its behalf from any Loan Partyunder the provisions of this Agreement and the other documents delivered pursuant hereto, (ii) take such action on its behalf and to exercise all rights, such powers and remedies to perform such duties hereunder and perform the duties thereunder, as are expressly a specifically delegated to or required of the Agent under by the terms hereof or thereof and such Loan Documents and (iii) exercise such other powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, . The Agent shall have no duties or responsibilities other than those expressly set forth in this Agreement or the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow delivered pursuant hereto. Neither the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise nor any of its rightsofficers, powers and remedies underdirectors, and delegate employees or perform agents shall be liable for any of its duties action taken or omitted by it or them as such hereunder or any other action with respect todocument delivered pursuant hereto or in connection herewith or therewith, any Loan Document unless caused by its or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender)their gross negligence or willful misconduct. Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf The duties of the Lenders, with duties that are entirely Agent shall be mechanical and administrative in nature; the Agent shall not have by reason of this Agreement or any other document delivered pursuant hereto a fiduciary relationship win respect of any Purchaser or their assignees; and nothing in this Agreement or any document delivered pursuant hereto, notwithstanding the use express or implied, is intended to or shall be so construed as to impose upon Agent any obligations or liabilities in respect of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in this Agreement or any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than document delivered pursuant hereto except as expressly set forth therein herein or any role therein. In the case of an Event of Default under the Notes, the Company shall pay the Agent a one-time fee of $25,000 within 10 days of such Event of Default as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any consideration of its Subsidiaries that is communicated services to or obtained by GECC or any of its Affiliates be provided under this Agreement and the agreements and documents delivered in any capacityconnection herewith.
Appears in 1 contract
Sources: Securities Purchase Agreement (Midas Medici Group Holdings, Inc.)
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.79.9) as Agent under the Loan Debt Documents and authorizes Agent to (ia) execute and deliver the Loan Debt Documents and accept delivery thereof on its behalf from any Loan PartyParties, (iib) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Debt Documents and (iiic) exercise such powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Agent and Lenders and none of Loan Parties nor any other person shall have any rights as a third party beneficiary of any [*CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH PORTION, WHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK [***], HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.] of the provisions hereof. In performing its functions and duties under this Agreement and the other Debt Documents, Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Loan Party or any other person. Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the other Debt Documents. The duties of Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to have, by reason of this Agreement, any other Debt Document or otherwise a fiduciary or trustee relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Debt Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its affiliates in any capacity.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Debt Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person person making any payment in connection with any Loan Debt Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any proceeding described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens liens created by the Loan Debt Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens liens created or purported to be created by the Loan Debt Documents, (vi) except as may be otherwise specified in any Loan Debt Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Debt Documents, applicable Requirements of Law law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Debt Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Party with, and cash and Cash Equivalents cash equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Debt Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person [*CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH PORTION, WHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK [***], HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.] person (including any Lender). Any such Person person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, If Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (iincluding failure to act) is acting solely on behalf of the Lenders, in connection with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Debt Document, then Agent shall be entitled to refrain from such act or taking such action unless and (iii) until Agent shall have no implied functionsreceived instructions from Requisite Lenders or all affected Lenders, responsibilities, duties, obligations or other liabilities under any Loan Documentas the case may be, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not incur liability to any person by reason of so refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Debt Document (a) if such action would, in the opinion of Agent, be contrary to law or any Debt Document, (b) if such action would, in the opinion of Agent, expose Agent to any potential liability under any law, statute or regulation or (c) if Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any duty to discloseright of action whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under any other Debt Document in accordance with the instructions of Requisite Lenders or all affected Lenders, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityas applicable.
Appears in 1 contract
Sources: License Agreement (MDRNA, Inc.)
Appointment of Agent. (a) Each Lender hereby appoints GECC Solar (together with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to AgentAgent except to the extent the Loan Documents specifically require a payment to be made directly to a Lender, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver, all of the foregoing actions to be taken in Agent's reasonable business discretion; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party or any Guarantor with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “"Agent”", the terms “"agent”", “"Agent” " and “"collateral agent” " and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC Solar or any of its Affiliates in any capacity.
Appears in 1 contract
Sources: Loan and Security Agreement (Cas Medical Systems Inc)
Appointment of Agent. (a) Each Lender hereby irrevocably designates and appoints GECC (together with CIT as the Administrative Agent for the Lenders and CUSA as Syndication Agent for the Lenders under this Financing Agreement and any successor ancillary loan documents and irrevocably authorizes CIT as the Administrative Agent pursuant for such Lender, and CUSA as Syndication Agent for such Lender, to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf under the provisions of this Financing Agreement and all ancillary documents and to exercise all rights, such powers and remedies and perform the such duties as are expressly delegated to the Administrative Agent under or the Syndication Agent, as the case may be, by the terms of this Financing Agreement and all ancillary documents together with such Loan Documents and (iii) exercise such other powers as are reasonably incidental thereto.
(b) Without limiting . Notwithstanding any provision to the generality of clause (a) abovecontrary elsewhere in this Financing Agreement, neither the Administrative Agent nor the Syndication Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect toresponsibilities, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as except those expressly set forth therein herein, or any role as agent, fiduciary or trustee of or for relationship with any Lender or any other Person and (iii) shall have no implied covenants, functions, responsibilities, duties, obligations or other liabilities under shall be read into this Financing Agreement and the ancillary documents or otherwise exist against the Administrative Agent or the Syndication Agent. Further, without limiting any Loan Document, and each Lender, by accepting the benefits of the Loan Documentsforegoing, each Lender hereby waives confirms its irrevocable authorization to the Administrative Agent to execute the acknowledgments and agrees not to assert any claim against Agent based on consents required by General Motors Corporation in connection with its interest under the roles, duties Access and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in Security Agreements and ratifies such action by the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityAdministrative Agent.
Appears in 1 contract
Appointment of Agent. By accepting the benefits of this Agreement, each of the Secured Parties appoints Credit Suisse. to act, and Credit Suisse agrees to act, as Agent for the Secured Parties pursuant to the terms of this Agreement and the other Collateral Documents and to execute and enter into this Agreement and the other Collateral Documents and all other instruments relating to this Agreement and the other Collateral Documents and (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof take actions on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as that are expressly delegated to Agent permitted under such Loan Documents the provisions of this Agreement and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated thereininstruments or agreements relating hereto or thereto and (b) to exercise such powers and perform such duties as are, (iv) managein each case, supervise and otherwise deal with expressly delegated to the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created Agent by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent terms hereof and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements thereof. By acceptance of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of this Agreement, each Secured Party that is not a party to this Agreement shall be deemed to have consented to the Loan Documents, hereby waives appointment and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly authorization set forth in the Loan Documentsimmediately preceding sentence. THE AGENT HAS CONSENTED TO SERVE AS AGENT HEREUNDER ON THE EXPRESS UNDERSTANDING, Agent shall not have any duty to discloseAND THE SECURED PARTIES, and shall not be liable for failure to discloseBY ACCEPTING THE BENEFITS OF THIS AGREEMENT, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitySHALL BE DEEMED TO HAVE AGREED, THAT THE AGENT SHALL HAVE NO DUTY AND SHALL OWE NO OBLIGATION OR RESPONSIBILITY (FIDUCIARY OR OTHERWISE), REGARDLESS OF WHETHER AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, TO THE SECURED PARTIES, OTHER THAN THE DUTY TO PERFORM ITS EXPRESS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER COLLATERAL DOCUMENTS IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, SUBJECT IN ALL EVENTS TO THE PROVISIONS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS LIMITING THE RESPONSIBILITY OR LIABILITY OF THE AGENT HEREUNDER.
Appears in 1 contract
Sources: u.s. Pledge and Security Agreement (Hawker Beechcraft Quality Support Co)
Appointment of Agent. 9.1 The Purchaser (on its own behalf and, if applicable on behalf of others for whom the Purchaser is contracting for hereunder) hereby irrevocably authorizes the Agent:
(a) Each Lender hereby appoints GECC to complete and correct in its sole discretion any information contained in this Agreement (together including the Appendices hereto), and any other document prepared or delivered by the Purchaser in connection with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan PartyPrivate Placement, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.which may require completion or correction;
(b) Without limiting to negotiate, settle and amend the generality form of clause the Warrant Certificate and any other agreement entered into or to be entered into in connection with this transaction;
(c) to negotiate and waive, in whole or in part, or extend the time for compliance with, any of the Issuer's representations, warranties or covenants or closing conditions, given or made by the Issuer for the benefit of the Purchaser, including but not limited to those contained herein, in the Agency Agreement and any other agreement, instrument or document entered into by the Agent or the Purchaser in connection with this subscription or the Private Placement, all in such manner and on such terms and conditions as the Agent may determine, acting reasonably, without in any way affecting the Purchaser's obligations or the obligations of such others hereunder;
(d) to act as the Purchaser's representative at the closing of the Private Placement to, among other things, receive certificates representing the Securities subscribed for by the Purchaser, and to swear, execute and file any receipts or other required documentation on behalf of the Purchaser, and
(e) to terminate this subscription on behalf of the Purchaser in the event that any condition precedent to the completion of the Private Placement has not been satisfied by the date set therefor.
9.2 Although the Agent may have introduced the Purchaser to the Issuer, the Purchaser acknowledges and agrees with, and for the benefit of, the Agent, such acknowledgments and agreements to survive Closing Date, that:
(a) abovethe Agent and its directors, Agent shall officers, employees, agents and representatives have no responsibility or liability of any nature whatsoever for the sole and exclusive right and authority (to the exclusion accuracy or adequacy of the Lenders)Disclosure Record, and or as to whether all information concerning the Issuer that is hereby authorized, required to be publicly disclosed by it has been generally disclosed;
(ib) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including Agent has not engaged in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders independent verification with respect to the Loan Parties and/or information contained in the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiverDisclosure Record; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.and
(c) Under the Loan DocumentsAgent is entitled to rely on the statements, Agent (i) is acting solely on behalf covenants and answers of the LendersPurchaser and the Issuer contained in this subscription, with duties and that are entirely administrative in nature, notwithstanding the use Purchaser will hold harmless the Agent and the Issuer from any loss or damage they may suffer whatsoever as a result of any misrepresentation of the defined term “Agent”Purchaser contained herein or the Purchaser's failure to accurately complete any of the information required to be completed by the Purchaser herein.
9.3 Although the Agent or the U.S. Affiliate may have introduced the Purchaser to the Issuer, the terms “agent”, “Agent” Purchaser and “collateral agent” the Issuer acknowledge and similar terms in any Loan Document to refer to agree with and for the benefit of the Agent or the U.S. Affiliate that:
(a) the Agent, which terms are used the U.S. Affiliate and their respective directors, officers, employees, agents, and representatives have no responsibility or liability of any nature whatsoever for title purposes onlythe accuracy or adequacy of the information contained in this Agreement, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person publicly available information concerning the Issuer or as to whether the Issuer has generally disclosed all information concerning the Issuer that it was required to disclosed;
(b) neither the Agent nor the U.S. Affiliate has engaged in any independent investigation or verification regarding this Agreement or any other information;
(c) each of the Agent and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Documentthe U.S. Affiliate is entitled to rely on the statements and answers of the Purchaser and the Issuer contained in this Agreement and in the Appendices, and each Lenderthat the Purchaser will hold harmless the Agent, by accepting the benefits U.S. Affiliate and the Issuer from any loss or damage it may suffer as a result of the Loan DocumentsPurchaser’s failure to correctly complete the Appendices; and
(d) the Purchaser and the Issuer release the Agent, hereby waives the U.S. Affiliate and agrees not to assert any claim against Agent based on of their respective affiliates and any of the rolesAgent’s or the U.S. Affiliate's directors, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to discloseofficers, and shall not be liable for failure to discloseemployees from any claims, any information relating to any Loan Party losses, damages, liabilities (or any actions in respect thereof), costs, and expenses that may arise in respect of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitythis Agreement.
Appears in 1 contract
Sources: Subscription Agreement (Crosshair Exploration & Mining Corp)
Appointment of Agent. (a) Each Lender hereby irrevocably appoints GECC (together with any successor Agent pursuant to Section 9.7) Wilmington Trust as Agent hereunder and under the Loan other Transaction Documents and each Lender hereby designates and authorizes the Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf under the provisions of this Agreement and each other Transaction Document and to exercise all rights, such powers and remedies and perform the such duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise it by the terms of this Agreement or any other Transaction Document, together with such powers as are reasonably incidental thereto.
(b) Without limiting . Agent hereby agrees to act in its capacity as such upon the generality express conditions contained herein and the other Transaction Documents, as applicable. The provisions of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent this Article VIII are solely for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims benefit of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf and none of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or shall have any rights as a third party beneficiary of any of the Collateralprovisions thereof. Notwithstanding any provision to the contrary contained elsewhere herein or in any other Transaction Document, whether under the Loan Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Transaction Documents, applicable Requirements all of Law or otherwise which duties and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that responsibilities are entirely administrative in nature, notwithstanding nor shall the use of the defined term “Agent”Agent have or be deemed to have any fiduciary relationship with any Lender, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other liabilities Transaction Document or otherwise exist against the Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Transaction Documents with reference to the Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Loan DocumentApplicable Law. Instead, such term is used merely as a matter of market custom, and each Lenderis intended to create or reflect only an administrative relationship between independent contracting parties. In performing its functions and duties hereunder, by accepting the benefits Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for the Loan Documents, hereby waives and agrees not Parties. Notwithstanding anything in this Agreement or the other Transaction Documents to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documentscontrary, Agent shall not have be required to exercise any duty discretion or take, or to discloseomit to take, and any action, including with respect to enforcement or collection, except any action it is required to take or omit to take (i) under any Transaction Document or (ii) pursuant to written instructions from the Requisite Lenders (or, where expressly required by the terms of this Agreement, a greater proportion of Lenders); provided that Agent shall not be liable for failure required to disclosetake any action that, any information relating in its opinion or the opinion of its counsel, may expose the Agent to liability or that is contrary to any Loan Party Transaction Document or Applicable Law. The Agent shall also act as the “Securities Intermediary” under this Agreement and the other Transaction Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Agent to act as the Securities Intermediary under this Agreement and the other Transaction Documents, together with such powers and discretions as are reasonably incidental thereto. In this connection, the Agent, as “Securities Intermediary” (and any co-agents, sub-agents and attorneys-in-fact appointed by the Agent pursuant to this Article VIII for purposes of performing any of its Subsidiaries that is communicated duties or responsibilities as the “Securities Intermediary”), shall be entitled to or obtained by GECC or any the benefits of its Affiliates all provisions of this Article VI, Article VIII and Article IX, as if set forth in any capacityfull herein with respect thereto.
Appears in 1 contract
Sources: Loan and Security Agreement (GPAQ Acquisition Holdings, Inc.)
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.79.6) as Agent under the Loan Debt Documents and authorizes Agent to (ia) execute and deliver the Loan Debt Documents and accept delivery thereof on its behalf from any Loan PartyParties, (iib) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Debt Documents and (iiic) exercise such powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Agent and Lenders and none of Loan Parties nor any other person shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Debt Documents, Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Loan Party or any other person. Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the other Debt Documents. The duties of Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to have, by reason of this Agreement, any other Debt Document or otherwise a fiduciary or trustee relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Debt Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its affiliates in any capacity.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Debt Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person person making any payment in connection with any Loan Debt Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any proceeding described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Debt Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Debt Documents, (vi) except as may be otherwise specified in any Loan Debt Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Debt Documents, applicable Requirements of Law law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Debt Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Party with, and cash and Cash Equivalents cash equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Debt Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person person (including any Lender). Any such Person person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, If Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (iincluding failure to act) is acting solely on behalf of the Lenders, in connection with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Debt Document, then Agent shall be entitled to refrain from such act or taking such action unless and (iii) until Agent shall have no implied functionsreceived instructions from Requisite Lenders or all affected Lenders, responsibilities, duties, obligations or other liabilities under any Loan Documentas the case may be, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not incur liability to any person by reason of so refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Debt Document (a) if such action would, in the opinion of Agent, be contrary to law or any Debt Document, (b) if such action would, in the opinion of Agent, expose Agent to any potential liability under any law, statute or regulation or (c) if Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any duty to discloseright of action whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under any other Debt Document in accordance with the instructions of Requisite Lenders or all affected Lenders, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityas applicable.
Appears in 1 contract
Appointment of Agent. By their execution hereof, each of the Sellers hereby designates and appoints ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or in his absence ▇▇▇▇▇ ▇. ▇▇▇▇▇ (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.7the “Agent”) as Agent under the Loan Documents such Seller’s agent and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact irrevocably and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documentswith power of substitution, Agent with full power and authority (i) is acting solely to execute and deliver assignments (including stock powers, affidavits of lost stock certificates and membership assignment agreements) of the Shares and the Interests to Buyer and any and all other Related Documents necessary to facilitate the consummation of the transactions contemplated by this Agreement; (ii) to receive payments under or pursuant to this Agreement and to disburse such payment to the Sellers and others, as contemplated by this Agreement; (iii) to receive and forward any notices and communications pursuant to this Agreement; (iv) to negotiate and settle any disputes and proceedings pursuant to Article II and Article X hereof, as contemplated herein; and (v) to exclusively enforce the contractual rights of the Sellers under this Agreement (it being expressly understood and agreed that only the Agent shall have such right, and no Seller shall seek to enforce any rights it may have under this Agreement except through the actions of the Agent). Each Seller agrees to be bound by any and all actions, waivers or agreements the Agent may make on behalf of the LendersSellers pursuant to this Agreement or the Related Documents. Each Seller agrees to do all further acts and things which may be necessary or appropriate to ratify, approve, confirm or adopt any action taken by the Agent with duties that are entirely administrative in nature, notwithstanding the use respect to this Agreement. The appointment of the defined term “Agent”, the terms “agent”, “Agent” Agent is coupled with an interest and “collateral agent” and similar terms shall be irrevocable by any Seller in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of manner or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits reason. This power of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and attorney shall not be liable for failure affected by the death, disability or incapacity of any Seller. In the event of the Agent’s unwillingness or inability to discloseperform his duties hereunder after the Closing Date, any information relating a replacement Agent (who shall be reasonably acceptable to any Loan Party or any Buyer) shall be elected by the Sellers which held a majority in interest of its Subsidiaries that is communicated to or obtained the Shares held by GECC or any all Sellers on the Closing Date (based upon their respective holdings of its Affiliates in any capacitythe Shares on the Closing Date).
Appears in 1 contract
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) subject to Section 8.2 hereof, manage, supervise and otherwise deal with the Collateral, other than any release or subordination of a security interest in the Collateral requiring the consent of Requisite Lenders or all Lenders under Section 10.6(a) (provided that Agent may so release or subordinate such security interest if such consent is obtained), (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacity.
Appears in 1 contract
Sources: Loan and Security Agreement (Navidea Biopharmaceuticals, Inc.)
Appointment of Agent. (a) Each Lender The Company hereby irrevocably designates, appoints GECC (together with any successor Agent pursuant to Section 9.7) and empowers CT Corporation System, 111 Eighth Avenue, 13th Floor, New York, New York 10011, as Agent under the Loan Documents its desi▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ledge for and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders)behalf, and is hereby authorizedits properties, to (i) act as the disbursing assets and collecting agent for the Lenders revenues, service of any and all legal process, summons, notices and documents which may be served in any action, suit or proceeding against it with respect to all payments and collections its obligations or liabilities under, or any other matter arising out of or in connection with, this Agreement that is brought in any United States federal court or New York state court, in each case located in the Borough of Manhattan, The City of New York, which may be made on such designee, appointee and agent in accordance with legal procedures prescribed for such courts. If for any reason such designee, appointee and agent shall cease to be available to act as such, the Loan Documents Company hereby agrees to designate a new designee, appointee and agent in The City of New York on the terms and for the purposes of this Section. The Company hereby further irrevocably agrees to the service of any and all legal process, summons, notices and documents in any such action, suit or proceeding by serving a copy thereof upon the relevant agent for service of process referred to in this Section (including whether or not the appointment of such agent shall for any reason prove to be ineffective or such agent shall accept or acknowledge such service) or by mailing copies thereof by registered or certified air mail, first class, postage prepaid, to the Company at Swan Building, 26 Victoria Street, Hamilton, Bermuda HM12, Attention: Chief Financi▇▇ ▇▇▇▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ agrees that service of process as aforementioned shall be deemed in every respect effective service of process upon it in any such action, suit or proceeding and that the failure of any such designee, appointee and agent to give any notice of such service to it shall not impair or affect in any way the validity of such service or any judgment rendered in any action, suit or proceeding based thereon. Nothing herein shall in any way be deemed to limit the ability of any Person to serve any such legal process, summons, notices and documents in any other bankruptcymanner permitted by applicable law or to obtain jurisdiction over the Company or bring actions, insolvency suits or similar proceeding)proceedings against the Company in any jurisdiction, and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agentmanner, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, permitted by applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agentlaw.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacity.
Appears in 1 contract
Sources: Placement Agreement (Pxre Group LTD)
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant designates ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Securities as its agent and irrevocably authorizes it to Section 9.7) as Agent execute and deliver the Loan Documents, binding the Lenders to the terms thereof, take action on such ▇▇▇▇▇▇’s behalf under the Loan Documents and authorizes Agent to (i) execute exercise the powers and deliver to perform the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf duties described therein and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such other powers as are reasonably incidental thereto. Agent may perform any of its duties by or through its agents or employees or by or through one or more sub-agents appointed by it. Each of the Lenders and each assignee of any of the foregoing hereby irrevocably authorizes the Agent to take such actions on behalf of such Lender or assignee, as applicable, and to exercise such powers as are specifically delegated to the Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. Without limiting the generality of the foregoing, the Agent is hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents, and all such rights and remedies in respect of such Collateral shall be implemented by the Agent.
(b) Without limiting Each Lender further irrevocably authorizes the generality of clause (a) aboveAgent to accept, Agent shall have the sole for and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, any parallel debt obligations with duties that are entirely administrative in naturethe Loan Parties pursuant to which the Agent shall have its own, notwithstanding the use independent right to demand payment of the defined term “Agent”amounts payable by each Loan Party in connection with the Obligations.
(c) The provisions of this Article are solely for the benefit of Agent and the Lenders, and except as expressly set forth herein, Loan Parties shall not have any rights with respect to any of the provisions hereof. Agent shall act solely as agent of the Lenders and assume no obligation toward or relationship of agency or trust with or for Borrower.
(d) Notwithstanding any provision to the contrary elsewhere in this Agreement, (i) prior to granting any material consent, waiver or approval hereunder, the terms “agent”, “Agent” Agent shall first consult with and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes onlyreceive the consent or direction from the Required Lenders, (ii) is the Agent shall not assuming elect to not take any obligation under any Loan Document other than as expressly set forth therein material action hereunder without first consulting with and receiving the direction or any role as agentconsent from the Required Lenders, fiduciary or trustee of or for any Lender or any other Person and (iii) the Required Lenders have the power to direct the Agent in the exercise of its powers and the performance of its duties under the Loan Documents and the Agent agrees to act in accordance with such directions of the Required Lenders; provided that in no event shall have no implied functionsthe Agent be required to comply with any such directions to the extent that the Agent reasonably believes that its compliance with such directions would be unlawful, responsibilitiescould cause the Agent reputational harm, dutiesor for which the Agent does not reasonably believe it is adequately indemnified. In all circumstances, obligations the consent or direction of the Required Lenders may be proved by the written instruction of the Required Lenders, or, in the Agent’s discretion, by e-mail from the Required Lenders or their counsel.
(e) The rights, privileges and immunities of the Agent in this Agreement and the other liabilities under any Loan Documents shall automatically be incorporated by reference into each Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees whether or not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitystated therein.
Appears in 1 contract
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.79.6) as Agent under the Loan Transaction Documents and authorizes Agent to (ia) execute and deliver the Loan Transaction Documents and accept delivery thereof on its behalf from any Loan PartyParties, (iib) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Transaction Documents and (iiic) exercise such powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Agent and the Lenders and none of Loan Parties nor any other person shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Transaction Documents, Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Loan Party or any other person. Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the other Transaction Documents. The duties of Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to have, by reason of this Agreement, any other Transaction Document or otherwise a fiduciary or trustee relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Transaction Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its affiliates in any capacity.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Transaction Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person person making any payment in connection with any Loan Transaction Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and the Lenders with respect to any Obligation in any proceeding described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Transaction Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Transaction Documents, (vi) except as may be otherwise specified in any Loan Transaction Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Transaction Documents, applicable Requirements of Law law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Transaction Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Party with, and cash and Cash Equivalents cash equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Transaction Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person person (including any Lender). Any such Person person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, If Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (iincluding failure to act) is acting solely on behalf of the Lenders, in connection with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Transaction Document, then Agent shall be entitled to refrain from such act or taking such action unless and (iii) until Agent shall have no implied functionsreceived instructions from Requisite Lenders or all affected Lenders, responsibilities, duties, obligations or other liabilities under any Loan Documentas the case may be, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not incur liability to any person by reason of so refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Transaction Document (a) if such action would, in the opinion of Agent, be contrary to law or any Transaction Document, (b) if such action would, in the opinion of Agent, expose Agent to any potential liability under any law, statute or regulation or (c) if Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any duty to discloseright of action whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under any other Transaction Document in accordance with the instructions of Requisite Lenders or all affected Lenders, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityas applicable.
Appears in 1 contract
Sources: Loan Agreement (XOMA Corp)
Appointment of Agent. (a) Each Lender Holder, by its acceptance of this Agreement, hereby irrevocably appoints GECC (together with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly collateral agent under this Agreement and the other Note Documents, including: (i) to execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to this Agreement or any other Note Document; (ii) to perform, exercise, and enforce any and all other rights and remedies of the Holders with respect to the Obligors, the Obligations, or otherwise related to any of same to the extent reasonably incidental to the exercise by Agent of the rights and remedies specifically authorized to be exercised by Agent by the terms of this Agreement or any other Note Document; (iii) to incur and pay such fees necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to this Agreement or any other Note Document; and (iv) to take such action as Agent deems appropriate on its behalf to exercise such powers delegated to Agent under such Loan by the terms hereof or the other Note Documents (including, without limitation, the power to give or to refuse to give notices, waivers, consents, approvals and (iiiinstructions and the power to make or to refuse to make determinations and calculations) exercise together with such powers as are reasonably incidental thereto.
thereto to carry out the purposes hereof and thereof and consents and agrees to the terms of Sections 3 and 9 and the Security Documents (bincluding, without limitation, the provisions providing for foreclosure and release of Collateral and authorizing the Agent to enter into the Security Document on its behalf) Without limiting as the generality of clause (a) abovesame may be in effect or may be amended or otherwise modified from time to time in accordance with their terms and this Agreement, and authorizes and directs Agent to enter into the Note Documents and to perform its obligations and exercise its rights thereunder in accordance therewith. As to any matters not expressly provided for by this Agreement and the other Note Documents, Agent shall have not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the sole and exclusive right and authority (to the exclusion instructions of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiverMajority Holders; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders shall not be required to take further actions as collateral sub-agents for purposes any action which, in the reasonable opinion of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees exposes Agent to take such further actions liability or which is contrary to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties this Agreement or any other action with respect to, any Loan Note Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender)applicable law. Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacity.
Appears in 1 contract
Sources: Note Purchase and Security Agreement (Lemonade, Inc.)
Appointment of Agent. (a) Each Lender hereby appoints GECC Cortland (together with any successor Agent pursuant to Section 9.7) as Agent administrative agent and collateral agent under the Loan Documents and irrevocably authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC Agent or any of its Affiliates in any capacity.
Appears in 1 contract
Sources: Loan and Security Agreement (Siga Technologies Inc)
Appointment of Agent. (a) Each Lender Bank hereby appoints GECC (together with any successor Agent pursuant to Section 9.7) designates BLUSA as Agent under to act as herein specified. Each Bank hereby irrevocably authorizes, and each holder of any Note or participation in any Letter of Credit or Acceptance, by the Loan Documents and authorizes acceptance of a Note or participation in a Letter of Credit, shall be deemed irrevocably to authorize the Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf under the provisions of this Agreement, the Notes and other Loan Documents and any other instruments and agreements referred to herein and to exercise all rights, such powers and remedies to perform such duties hereunder and perform the duties thereunder as are expressly specifically delegated to or required of the Agent under by the terms hereof and thereof and such Loan Documents and (iii) exercise such other powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, . The Agent shall have hold all collateral and all payments of principal, interest, fees, charges and expenses received pursuant to this Agreement or any other Loan Document for the sole and exclusive right and authority ratable benefit of the Banks based upon their Pro Rata Shares (except to the exclusion extent any of such amounts are for the account of the LendersAgent or the Issuer), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of . The Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document hereunder by or through its agents or employees. The provisions of this Article 11 are solely for the benefit of the Agent and the Banks, and neither the Borrower nor any trusteeGuarantor shall have any rights as a third party beneficiary of any of the provisions hereof. Neither the Agent nor any of is directors, co-agentofficers, employeeemployees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the other Loan Documents or in connection herewith or therewith at the request or with the approval of the Required Lenders (or, attorney-in-fact and any other Person (including any Lenderif otherwise specifically required hereunder or thereunder, the consent of all of the Banks). Any such Person In performing its functions and duties under this Agreement, the Agent shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting act solely on behalf as agent of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” Banks and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is does not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, assume and shall not be liable deemed to have assumed any obligation toward or relationship of agency or trust with or for failure to disclose, any information relating to any Loan Party the Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityGuarantor.
Appears in 1 contract
Sources: Credit and Security Agreement (Delta Galil Industries LTD)
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor and authorizes the Administrative Agent pursuant to Section 9.7) act as the Administrative Agent hereunder and under the Loan other Financing Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take with such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to the Administrative Agent under by the terms of this Agreement and the other Financing Documents, together with such Loan Documents and (iii) exercise such other powers as are reasonably incidental thereto.
(b) Without limiting . Each Secured Party hereby appoints and authorizes the generality of clause (a) above, Collateral Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing Collateral Agent hereunder and collecting agent for under the Lenders other Financing Documents with respect such powers as are expressly delegated to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Collateral Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority terms of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent this Agreement and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Financing Documents, applicable Requirements of Law or otherwise together with such other powers as are reasonably incidental thereto. Each Lender hereby appoints and (vii) execute any amendment, consent or waiver under authorizes the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Syndication Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for the Syndication Agent hereunder and under the other Financing Documents with such powers as are expressly delegated to the Syndication Agent by the terms of this Agreement and the Lenders for purposes other Financing Documents, together with such other powers as are reasonably incidental thereto. None of the perfection of all Liens with respect to the Collateral, including Agents shall have any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as responsibilities except those expressly set forth in the Loan Documents, Agent shall not have this Agreement or in any duty to discloseother Financing Document, and none of the Agents shall not be liable for failure to disclosea trustee for, or fiduciary of, any information relating Lender or Secured Party. Notwithstanding anything to the contrary contained herein, none of the Agents shall be required to take any action which is contrary to this Agreement or any other Financing Documents or any Legal Requirement or exposes such Agent to any Loan Party liability. None of the Agents or their respective Affiliates shall be responsible to any other Lender for any recitals, statements, representations or warranties made by Borrower or any Affiliate of its Subsidiaries that is communicated Borrower contained in this Agreement or any other Financing Document or in any certificate or other document referred to or obtained provided for in, or received by GECC any Agent, or any Lender under this Agreement or any other Financing Document, for the value, validity, effectiveness, genuineness, enforceability or sufficiency of its Affiliates in this Agreement, the Notes, any capacityother Financing Document or any other document referred to or provided for herein or for any failure by Borrower or any Affiliate of Borrower to perform their respective obligations hereunder or thereunder.
Appears in 1 contract
Sources: Financing Agreement (Central Vermont Public Service Corp)
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.79.9) as Agent under the Loan Debt Documents and authorizes the Agent to (ia) execute and deliver the Loan Debt Documents and accept delivery thereof on its behalf from any Loan PartyParties, (iib) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to the Agent under such Loan Debt Documents and (iiic) exercise such powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Agent and Lenders and none of Loan Parties nor any other person shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Debt Documents, Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Loan Party or any other person. Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the other Debt Documents. The duties of Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to have, by reason of this Agreement, any other Debt Document or otherwise a fiduciary or trustee relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Debt Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its affiliates in any capacity.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Debt Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person person making any payment in connection with any Loan Debt Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any proceeding described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens liens created by the Loan Debt Documents and all other purposes stated therein, (iv) subject to Section 8.2 hereof, manage, supervise and otherwise deal with the Collateral, other than any release or subordination of a security interest in the Collateral requiring the consent of Requisite Lenders or all Lenders under Sections 10.8(b) or 10.8(c) (provided that Agent may so release or subordinate such security interest if such consent is obtained), (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens liens created or purported to be created by the Loan Debt Documents, (vi) except as may be otherwise specified in any Loan Debt Document, subject to Sections 8.2 and 10.8 hereof, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Debt Documents, applicable Requirements of Law law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Debt Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Party with, and cash and Cash Equivalents cash equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Debt Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person person (including any Lender). Any such Person person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, If Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (iincluding failure to act) is acting solely on behalf of the Lenders, in connection with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Debt Document, then Agent shall be entitled to refrain from such act or taking such action unless and (iii) until Agent shall have no implied functionsreceived instructions from Requisite Lenders or all affected Lenders, responsibilities, duties, obligations or other liabilities under any Loan Documentas the case may be, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not incur liability to any person by reason of so refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Debt Document (a) if such action would, in the opinion of Agent, be contrary to law or any Debt Document, (b) if such action would, in the opinion of Agent, expose Agent to any potential liability under any law, statute or regulation or (c) if Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any duty to discloseright of action whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under any other Debt Document in accordance with the instructions of Requisite Lenders or all affected Lenders, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityas applicable.
Appears in 1 contract
Appointment of Agent. (a) Appointment and Authorization of Agent. Each Lender hereby designates and appoints GECC (together with any successor Agent pursuant CIBC to Section 9.7) act as Agent administrative agent and collateral agent on its behalf under this Agreement and the other Loan Documents and each Lender hereby irrevocably authorizes Agent to (i) execute and deliver each of the other Loan Documents and accept delivery thereof on its behalf from any Loan Partybehalf, (ii) hold the security interest for its ratable benefit to secure the Obligations, and to take such other action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise all rights, such powers and remedies and perform the such duties as are expressly delegated to Agent under such by the terms of this Agreement or any other Loan Documents and (iii) exercise Document, together with such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (. ▇▇▇▇▇ agrees to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing administrative agent and collecting collateral agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender)Lenders on the terms and conditions contained in this Section 13. Agent shall not have any duties or responsibilities, (iii) act as collateral agent for Agent and each Lender for purposes of except those expressly set forth herein or in the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may nor shall Agent have or be otherwise specified in deemed to have any Loan Document, exercise all remedies given to Agent and the other Lenders fiduciary relationship with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other liabilities Loan Document or otherwise exist against Agent. Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement or the other Loan Documents with reference to Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Loan Documentapplicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only a representative relationship between independent contracting parties. Each Lender hereby further authorizes Agent to act as the secured party under each Lenderof the Loan Documents that create a Lien on any item of Collateral. Except as expressly otherwise provided in this Agreement, by accepting Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions that Agent expressly is entitled to take or assert under or pursuant to this Agreement and the benefits other Loan Documents. Without limiting the generality of the foregoing, or of any other provision of the Loan Documents that provides rights or powers to Agent, Lenders agree that Agent shall have the right to exercise the following powers as long as this Agreement remains in effect: (a) maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Collateral, payments and proceeds of Collateral, and related matters, (b) execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents, hereby waives 1 Required waivers to be confirmed. or to take any other action with respect to any Collateral or Loan Documents which may be necessary to perfect, and agrees not maintain perfected, the security interests and Liens upon Collateral pursuant to assert any claim against Agent based the Loan Documents, (c) make Revolving Loans, for itself or on the rolesbehalf of Lenders, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth provided in the Loan Documents, Agent shall not have any duty to disclose(d) exclusively receive, apply, and shall not be liable distribute payments and proceeds of the Collateral as provided in the Loan Documents, (e) open and maintain such bank accounts and cash management arrangements as Agent deems necessary and appropriate in accordance with the Loan Documents for failure to disclosethe foregoing purposes, (f) perform, exercise, and enforce any information relating and all other rights and remedies of the Secured Parties with respect to any Loan Party or its Subsidiaries, the Obligations, the Collateral, or otherwise related to any of its Subsidiaries that is communicated to same as provided in the Loan Documents, and (g) incur and pay such Secured Party Expenses as Agent may deem necessary or obtained by GECC or any appropriate for the performance and fulfillment of its Affiliates in any capacityfunctions and powers pursuant to the Loan Documents.
Appears in 1 contract
Sources: Loan and Security Agreement
Appointment of Agent. (a) Each Lender Equityholder hereby appoints GECC (together with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act Shareholder Representative Services LLC as the disbursing representative, agent and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact of the Equityholders with full powers of substitution to act in the name, place and any other Person (including any Lender). Any such Person shall benefit from this Article 9 stead of the Equityholders with respect to the extent provided performance on behalf of the Equityholders under the terms and provisions of this Agreement and the other Transaction Agreements, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of the Equityholders as Agent deems necessary or appropriate without inquiry of and without additional approval from the Equityholders in connection with any of the transactions contemplated by Agent.this Agreement and the other Transaction Agreements, including:
(a) to consummate the transactions contemplated herein and to pay such Equityholders’ expenses incurred in connection with the negotiation and performance of this Agreement or the other Transaction Agreements (whether incurred prior to, on or after the date of this Agreement);
(b) to give and receive all notices, communications and to receive and accept service of legal process in connection with any action, suit or proceeding arising under this Agreement or the other Transaction Agreements;
(c) Under to authorize, direct or object to delivery to Purchaser of cash from the Loan DocumentsEscrow Fund;
(d) to deduct and/or hold back any funds that may be payable to any Equityholder pursuant to the terms of this Agreement or the other Transaction Agreements in order to pay any amount that may be payable by such Equityholder hereunder, Agent in each case on a basis consistent with their Percentage;
(ie) is acting solely to make any determinations, agree to, negotiate, enter into settlements and compromises of, any matters contemplated by this Agreement or the other Transaction Agreements, including in connection with the determination or the adjustment of, or any other matter pertaining to, the Merger Consideration, whether before or after Closing;
(f) to act for the Equityholders with respect to all indemnification matters referred to in this Agreement or the other Transaction Agreements, including the right to negotiate and compromise on behalf of the LendersEquityholders any indemnification claim made by or against the Equityholders;
(g) to execute and deliver on behalf of such Equityholder any amendment or waiver to the terms of this Agreement or the other Transaction Agreements;
(h) to disburse funds to third parties for expenses and liabilities;
(i) to engage, with duties that are entirely administrative in natureemploy and obtain the advice of legal counsel, notwithstanding the use accountants and other professional advisors and rely on their advice and counsel, and to incur and pay fees and expenses of such advisors on behalf of the defined term “Agent”, Equityholders;
(j) to take or refrain from taking all actions necessary or appropriate on behalf of the Equityholders in the sole judgment of Agent for the accomplishment of the foregoing or required or permitted by the terms “agent”of this Agreement or the Transaction Agreements; and
(k) to do each and every act and exercise any and all rights which such Equityholder, “Agent” or any or all of the Equityholders collectively, are permitted or required to do or exercise under this Agreement. This grant of authority (including the appointment of agency and “collateral agent” this power of attorney) (i) shall be deemed to be facts ascertainable outside of this Agreement and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes onlyshall be binding on the Equityholders, (ii) is coupled with an interest and will be irrevocable and will not assuming be terminated by any obligation under Equityholder or by operation of Law, whether by the death, incompetence, bankruptcy, liquidation or incapacity of any Loan Document other than as expressly set forth therein Equityholder or any role as agent, fiduciary or trustee the occurrence of or for any Lender or any other Person event, and any action taken by Agent will be as valid as if such death, incompetence, bankruptcy, liquidation, incapacity or other event had not occurred, regardless of whether or not any Equityholder or Agent will have received any notice thereof and shall be binding on any successor thereto and (iii) shall have no implied functionssurvive the delivery of an assignment by any Equityholder of the whole or fraction of his, responsibilities, duties, obligations her or other liabilities under its interest in the Escrow Fund. Agent may resign at any Loan Documenttime. A new Agent may be designated by the holders at Closing of a majority in interest of the Equityholders upon not less than ten (10) days’ prior written notice to Purchaser. No bond shall be required of Agent, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclosereceive no compensation for its services from Purchaser, and shall not be liable for failure to disclose, any information relating to any Loan Party Surviving Corporation or any of its Subsidiaries their Affiliates (except to the extent that is communicated any such Affiliates are Equityholders) after the Closing. After the Closing, notices or communications to or obtained by GECC from Agent shall constitute notice to or any from each of its Affiliates in any capacitythe Equityholders.
Appears in 1 contract
Appointment of Agent. (a) Each Lender Unitholder hereby appoints GECC (together with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act ▇▇▇▇ ▇▇▇▇▇▇ as the disbursing agent and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact of the Unitholders to take the actions set forth herein. All such actions shall be deemed to be facts ascertainable outside this Agreement and any other Person shall be binding on the Unitholders. The Agent shall have the authority:
(including any Lendera) to consummate the transactions contemplated herein and to pay such Unitholders’ expenses incurred in connection with the negotiation and performance of this Agreement (whether incurred prior to, on or after the date of this Agreement). Any such Person shall benefit from this Article 9 ;
(b) to the extent provided by Agent.give and receive notices and communications;
(c) Under to authorize or object to delivery to the Loan DocumentsPurchaser or any other Purchaser Indemnified Party of any portion of the Indemnity Escrow Amount in satisfaction of claims by the Purchaser or any other Purchaser Indemnified Party and to distribute any funds payable by the Purchaser under this Agreement that are for the benefit of Unitholders that are released from the Indemnity Escrow Fund for the benefit of the Unitholders pursuant to the provisions of this Agreement;
(d) to deduct or hold back any funds that may be payable to any Unitholder pursuant to the terms of this Agreement and the Escrow Agreement in order to pay any amount that may be payable by such Unitholder hereunder, in each case on a basis consistent with their Percentage;
(e) to make any determinations with respect to, agree to, negotiate, and enter into settlements and compromises of any matters contemplated by this Agreement, including in connection with the determination or the adjustment of, or any other matter pertaining to, the Closing Purchase Price;
(f) to comply with Orders with respect to any matters contemplated by this Agreement;
(g) to execute and deliver on behalf of such Unitholder any amendment or waiver to the terms of this Agreement or any other Transaction Agreement;
(h) to disburse funds to third parties for expenses and liabilities;
(i) to engage, employ and obtain the advice of legal counsel, accountants and other professional advisors and rely on their advice and counsel, and to incur and pay fees and expenses of such advisors;
(j) to take all actions necessary or appropriate in the judgment of the Agent for the accomplishment of the foregoing or required by the terms of this Agreement or the Escrow Agreement; and
(k) to do each and every act and exercise any and all rights that such Unitholder, or any or all of the Unitholders collectively, are permitted or required to do or exercise under this Agreement. This grant of authority (including the appointment of agency and this power of attorney) (i) is acting solely coupled with an interest and will be irrevocable and will not be terminated by any Unitholder or by operation of Law, whether by the death, incompetence, bankruptcy, liquidation or incapacity of any Unitholder or the occurrence of any other event, and any action taken by the Agent will be as valid as if such death, incompetence, bankruptcy, liquidation, incapacity or other event had not occurred, regardless of whether or not any Unitholder or the Agent will have received any notice thereof and shall be binding on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” any successor thereto and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming shall survive the delivery of an assignment by any obligation under Unitholder of the whole or fraction of his, her or its interest in the Escrow Fund. Notwithstanding the foregoing, the Agent may resign at any Loan Document other than as expressly set forth therein time by providing written notice of intent to resign to the Unitholders, which resignation will be effective upon the earlier of (A) twenty (20) days following delivery of such written notice or any role as agent, fiduciary or trustee (B) the appointment of or for any Lender or any other Person and (iii) a successor by unanimous consent of the Unitholders. No bond shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Documentbe required of the Agent, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclosereceive no compensation for its services from the Purchaser, and shall not be liable for failure to disclose, any information relating to any Loan Party the Surviving Company or any of its Subsidiaries their Affiliates (provided that is communicated no such Persons are Unitholders) after the Closing. Notices or communications to or obtained by GECC from the Agent shall constitute notice to or any from each of its Affiliates in any capacitythe Unitholders.
Appears in 1 contract
Appointment of Agent. (a) Each Lender and each L/C Issuer (on behalf of themselves and on behalf of their Affiliates as potential counterparties to Secured Rate Contracts and Secured Cash Management Agreements) hereby appoints GECC GS (together with any successor Agent pursuant to Section 9.78.9) as the Agent under the Loan Documents hereunder and authorizes the Agent to (ix) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Credit Party, (iiy) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to the Agent under such Loan Documents and (iiiz) exercise such powers as are reasonably incidental thereto.. 81
(b) Duties as Collateral and Disbursing Agent. Without limiting the generality of clause (a) above, : (i) the Agent shall have the sole and exclusive right and authority (to the exclusion of the LendersLenders and L/C Issuers), and is hereby authorized, to (it) act as the disbursing and collecting agent for the Lenders and the L/C Issuers with respect to all payments and collections arising in connection with the Loan Documents (including in any proceeding described in subsections 7.1(f) or 7.1(g) or any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender Secured Party is hereby authorized to make such payment to the Agent, (iiu) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders the Secured Parties with respect to any Obligation in any proceeding described in subsection 7.1(f) or 7.1(g) or any other bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such LenderPerson), (iiiv) act as collateral agent for Agent and each Lender Secured Party for purposes of the perfection of all Liens created by the Loan Documents such agreements and all other purposes stated therein, (ivw) manage, supervise and otherwise deal with the Collateral, (vx) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (viy) except as may be otherwise specified in any Loan Document, exercise all remedies given to the Agent and the other Lenders Secured Parties with respect to the Loan Credit Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (viiz) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that the Agent hereby appoints, authorizes and directs each Lender and L/C Issuer to act as collateral sub-agent for Agent the Agent, the Lenders and the Lenders L/C Issuers for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Credit Party with, and cash and Cash Equivalents held by, by such LenderLender or L/C Issuer, and may further authorize and direct such ▇▇▇▇▇▇▇ and the Lenders L/C Issuers to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, the Agent and each Lender and L/C Issuer hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacity.; and
Appears in 1 contract
Appointment of Agent. (a) Each Lender and each Issuing Bank hereby appoints GECC Ares Capital Corporation (together with any successor Agent pursuant to Section 9.79.9) as the Administrative Agent under and the Loan Documents Collateral Agent hereunder and authorizes each such Agent to (i) execute and deliver the Loan Credit Documents and accept delivery thereof on its behalf from any Loan Credit Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to such Agent under such Loan Credit Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion . In furtherance of the Lenders)foregoing, each of the Lenders (including in its capacity as a potential Secured Swap Provider or a Bank Product Provider) hereby irrevocably appoints and is hereby authorized, authorizes the Collateral Agent to (i) act as the disbursing agent of (and collecting agent to hold any security interest created by the Collateral Documents for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of or in trust for) such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of acquiring, holding and enforcing any and all Liens created on Collateral granted by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority any of the Liens created or purported Credit Parties to be created by the Loan Documents, (vi) except as may be otherwise specified in secure any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens Obligations, together with respect to such powers and discretion as are reasonably incidental thereto. In this connection, the CollateralCollateral Agent (and any co-agents, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorneyattorneys-in-fact appointed by the Collateral Agent pursuant to Section 9.4 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and any other Person remedies thereunder at the direction of the Collateral Agent), will be entitled to the benefits of all provisions of this Section 9 (including any LenderSection 9.8(b). Any , as though such Person shall benefit from this Article 9 to co-agents, sub-agents and attorneys-in-fact were the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (iiunder the Credit Documents) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly if set forth in full herein with respect thereto. The provisions of this Section 9 are solely for the Loan Documentsbenefit of the Agents, Agent shall not the Issuing Banks and the Lenders and no Credit Party will have any duty to discloserights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties hereunder, each Agent will act solely as an agent of the Lenders and shall does not assume and will not be liable deemed to have assumed any obligation towards or relationship of agency or trust with or for failure to disclose, any information relating to any Loan Party the Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacity.Subsidiary. 169 [[8076235]]
Appears in 1 contract
Appointment of Agent. (a) Each Upon the occurrence of one or more of the events listed in paragraph 5(b), Lenders shall appoint an agent ("Agent") to perform certain ministerial functions on their behalf, including those specified in paragraph 5(c), in accordance with the terms herein. A Majority of the Lenders shall appoint the Agent in the manner set forth in paragraph 5(d). Any Lender hereby appoints GECC (together with any successor or other person may be appointed as Agent, and there may be more than a single person appointed to act as Agent. The Lenders may pay such compensation to the Agent pursuant as the Lenders determine appropriate or necessary in the circumstances, and in such event, the amount of compensation paid to Section 9.7) as the Agent under will be added to the Loan Documents and authorizes Agent to (i) execute and deliver principal amount of the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental theretoBorrower's indebtedness.
(b) Without limiting The following are the generality of clause (a) above, circumstances under which an Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to will be appointed:
(i) act as The Conversion or full repayment of the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, Notes.
(ii) file and prove claims and file other documents necessary or desirable to allow An Event of Default, as defined in the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), Notes and/or Security Documents.
(iii) act as collateral agent for Agent and each Lender for purposes The decision of a Majority of the perfection Lenders whether or not obtained at a meeting of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by AgentLenders.
(c) Under Agent shall act for the Loan Documents, Agent Lenders in the following respects:
(i) is acting solely Upon conversion or full repayment of all of the Notes, Agent will execute on behalf of the Lenders any document required or requested to effectuate the release of the security interest.
(ii) On behalf of the Lenders, with duties Agent will enforce the Notes and the Security Documents and exercise all rights and remedies that are entirely administrative the Lenders have under the Security Documents, as described in nature, notwithstanding the use Section 14 and other provisions of this Agreement.
(iii) On behalf of the defined term “Agent”Lenders, Agent may obtain all rights to the terms “agent”Collateral from the Custodian.
(iv) At the request of a Class B Lender, “Agent” and “collateral agent” and similar terms Agent will execute such documents described in any Loan Document Paragraph 4(b).
(d) The Agent shall be appointed by vote of a Majority of the Lenders. The vote may be taken (i) in a meeting held for such purpose upon five (5) days written notice to refer to Agent, which terms are used for title purposes only, the Lenders; or (ii) is not assuming any obligation under any Loan Document other than by written agreement in writing of a Majority of the Lenders. Attendance at the meeting may be in person, by proxy, or by telephone. Agent will signify his acceptance of such appointment, and his agreement with terms of this agreement that pertain to him as expressly set forth therein or any role as agentAgent, fiduciary or trustee by executing a copy of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilitiesthis Agreement. The terms of this agreement pertaining to such Agent's rights, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting responsibilities hereunder shall be effective upon the benefits of Agent's signature. If the Loan Documents, hereby waives and agrees not Agent is elected pursuant to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iiiii) above. Except as expressly set forth in , the Loan Documents, Agent shall promptly notify the Lenders who did not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any sign the agreement appointing his Agent of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityhis appointment.
Appears in 1 contract
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising The Subscriber understands that in connection with the Loan Documents (including in any other bankruptcypurchase of Units, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lenderthe Subscriber will be granted a lien together with all other investors in this Offering, on certain assets of the Company as security for the Note (the "Lien"). In order to facilitate the creation and perfection of the Lien, the Subscriber hereby appoints Davi▇ ▇. ▇▇▇ss of Lakewood, Colorado ("Agent"), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, Subscriber's attorney-in-fact for the purpose of perfecting the Lien, enforcing the Lien, subordinating the Lien and releasing the Lien. The Subscriber understands and agrees that the Agent will be acting in such capacity with respect to each such investor ("Investors") in the Offering and understands and authorizes the Company to compensate the Agent for Agent's time incurred in connection with agreeing to become Agent, as well as for filing, releasing and subordinating the Lien following his appointment as Agent and acceptance thereof. The Subscriber also understands and agrees that any other Person matters undertaken by the Agent must be paid for by the Investors (including any Lender)if not reimbursed by the Company) and that if such matters are undertaken Subscriber will be required to enter into a separate written agreement with the Agent. Any such Person The Subscriber agrees, authorizes and instructs the Agent to act as follows in connection with the Lien:
a. Agent shall benefit from this Article 9 be empowered to execute, on the Subscriber's behalf, security documents deemed necessary and appropriate by Agent for the perfection of the Lien and to execute all documents deemed necessary or advisable to fulfill Investors' obligations under the security documents, including, without limitation, executing documents necessary to effectuate the subordination of Investors' Lien to the senior lien of Bedford, the junior lien to the Old Bridge Lenders and
b. Should there be an Event of Default under the Notes, then the Agent, at the direction of the Majority Noteholders, will take actions deemed necessary or advisable to enforce the Lien and to the extent provided by Agentfeasible, obtain proceeds for the benefit of the Investors; pay such proceeds to the Investors, based upon the respective percentages of the Investor's ownership of the total principal balance of the Notes outstanding. Such efforts of Agent will continue until all amounts due the Investors pursuant to the terms of the Notes have been paid in full.
(c) Under c. When all amounts under the Loan DocumentsNotes have been paid in full to the Investors, the Agent (i) is acting solely shall deliver to the Company a release of the Investors' Lien and then the Agent shall be discharged.
d. Any right the Investors may have pursuant to the Security Documents may be exercised by the Agent on behalf of the LendersInvestors and the Subscriber hereby appoints the Agent as its attorney-in-fact, with duties that are entirely administrative in naturepower of substitution, notwithstanding and with complete authority to do all things necessary for the use collection of the defined term “Agent”Notes and the enforcement of the Lien; to demand and receive of and from any person all property, debts, and demands belonging and owing to the terms “agent”Investors pursuant to the Notes and the Security Documents. The Subscriber authorizes the Agent to perform and act in the manner specified by the Security Documents, “Agent” it being understood, however, that the Agent is only acting on behalf of the Investors. The Agent may execute and “collateral agent” exercise any of the rights or powers vested in him or perform any such duties either himself or by or through his attorneys, agent or employees.
e. The Agent acts hereunder as agent and similar terms in any Loan Document to refer to Agenta ministerial capacity for the Subscriber and the other Investors, which terms are used for title purposes onlyand his duties shall be determined solely by the provisions of this document and the Security Documents. The Subscriber expressly acknowledges, (ii) understands and agrees that it is not assuming any obligation under any Loan Document other than as expressly set forth therein looking to or any role as agent, fiduciary or trustee of or relying upon Agent for any Lender advice with respect to an investment in the Offering or any other Person and (iii) shall have no implied functionsmatter related thereto, responsibilitiesincluding, dutieswithout limitation, obligations securities laws implications or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) abovecompliance issues. Except as expressly set forth in the Loan Documents, The Agent shall not have be deemed to make any duty representations as to disclose, and the validity or value or authorization of the Notes or the Lien. The Agent shall not be liable for any act
f. The Agent shall be under no obligation to institute any action, suit or legal proceeding or take any other action likely to involve expense unless the Investors shall furnish the Agent with reasonable security and indemnity for any costs and expenses which may be incurred, but this provision shall not affect the power of the Agent to take such action as the Agent may consider proper, whether with or without any such security or indemnity. All rights of action under this Agency may be enforced by the Agent without the possession of any of the Notes or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Agent shall be brought in his name as Agent, and any recovery of judgment shall be for the ratable benefit of the investors, as their respective rights or interests may appear.
g. The Agent will not incur any liability or responsibility for any action taken in reliance on any notice, resolution, waiver, consent, order, certificate, or other paper, document or instrument reasonably believed by him to be genuine and to have been signed, sent or presented by the proper party or parties. The Agent may at any time consult with counsel satisfactory to him and shall incur no liability or responsibility for any action taken, suffered or omitted by him in good faith in accordance with the opinion or advice of such counsel.
h. At any time that the Agent requests specific written instructions from the Investors, or if the Agent requests that oral instructions be followed by written instructions, the Investors, within three (3) days of receiving such request for written instructions, shall prepare and transmit such instructions to the Agent. The failure of the Investors to disclose, so transmit such requested instructions shall relieve the Agent from any information relating liability pertaining to any Loan Party action which was the subject of the requested instruction and which action was taken by the Agent in good faith. Any notice, statement, instruction, request, direction, order or demand of the Investors shall be sufficiently evidenced by an instrument signed by Investors having Notes constituting in the aggregate more than 50% of the then outstanding aggregate principal balance of the Notes. Agent shall be entitled to rely upon a certificate executed by an officer of the Company certifying as to the outstanding principal balance under the Notes. The Agent shall not be liable for any action taken, suffered or omitted by him in accordance with such notice, statement, instruction, request, direction, order or demand.
i. The Subscriber, jointly and severally with the other Investors, agrees to reimburse the Agent for his reasonable expenses hereunder;
j. The Investors having Notes constituting in the aggregate more than 50% of its Subsidiaries that is communicated the then outstanding aggregate principal amount of the Notes, may, for whatever reason, replace the Agent with a new agent on 10 business days prior written notice to the Agent without however affecting the liabilities, responsibilities or obtained obligations accruing hereunder prior to such termination. The new agent will succeed to all of the rights and obligations of the Agent.
k. The Agent may resign by GECC or any of its Affiliates in any capacitygiving written notice to the Investors.
l. This agency appointment shall be governed and construed under the
Appears in 1 contract
Appointment of Agent. The Subscriber, on its own behalf and on behalf of others for whom it is contracting hereunder, hereby:
(a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.7) as Agent under irrevocably authorizes the Loan Documents and authorizes Agent to (i) execute negotiate and deliver settle the Loan Documents form of the Special Warrant Indenture and accept delivery thereof any other agreement to be entered into in connection with this transaction and to waive on its behalf from any Loan Party, (ii) take such action on its own behalf and to exercise all rightson behalf of the Subscribers in whole or in part, powers or extend the time for compliance with, any of the Closing conditions in such manner and remedies on such terms and perform conditions as the duties as are expressly delegated to Agent under may determine, acting reasonably, without in any way affecting the Subscriber's obligations or the obligations of such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.others hereunder;
(b) Without limiting acknowledges and agrees that the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to Company may vary, amend, alter or waive, in whole or in part, one or more of the Loan Parties and/or conditions set forth in the CollateralAgency Agreement in such manner and on such terms and conditions as they may determine, whether under acting reasonably, without affecting in any way the Loan Documents, applicable Requirements of Law Subscriber or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiverothers' obligations hereunder; provided, provided however, that the Agent hereby appointsshall not vary, authorizes and directs each Lender amend, alter or waive any such condition where to act as collateral sub-agent for Agent and the Lenders for purposes do so would result in a material change to any of the perfection material attributes of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.Special Warrants described herein; and
(c) Under irrevocably authorizes the Loan DocumentsAgent to swear, Agent (i) is acting solely execute, file and record any documents necessary to accept delivery of the Special Warrants at the Closing and to terminate this Agreement on behalf of the LendersSubscriber in the event that any condition precedent to the offering has not been satisfied. Should the Offering be over subscribed, with duties that are entirely administrative the number of Special Warrants subscribed for shall be allocated to the Subscriber in nature, notwithstanding the use discretion of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) aboveCompany. Except as expressly set forth in the Loan Documents, The Agent shall not have any duty be authorized to disclose, amend the information contained herein to reduce the number of Special Warrants subscribed for and shall not be liable for failure the Subscription Price to disclose, any information relating reflect the number of Special Warrants allocated to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitythe Subscriber and the Subscription Price therefor.
Appears in 1 contract
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.79.9) as Agent under the Loan Debt Documents and authorizes Agent to (ia) execute and deliver the Loan Debt Documents and accept delivery thereof on its behalf from any Loan PartyParties, (iib) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Debt Documents and (iiic) exercise such powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Agent and Lenders and none of Loan Parties nor any other person shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Debt Documents, Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Loan Party or any other person. Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the other Debt Documents. The duties of Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to have, by reason of this Agreement, any other Debt Document or otherwise a fiduciary or trustee relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Debt Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its affiliates in any capacity.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Debt Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person person making any payment in connection with any Loan Debt Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any proceeding described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens liens created by the Loan Debt Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens liens created or purported to be created by the Loan Debt Documents, (vi) except as may be otherwise specified in any Loan Debt Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Debt Documents, applicable Requirements of Law law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Debt Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Party with, and cash and Cash Equivalents cash equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Debt Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person person (including any Lender). Any such Person person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, If Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (iincluding failure to act) is acting solely on behalf of the Lenders, in connection with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Debt Document, then Agent shall be entitled to refrain from such act or taking such action unless and (iii) until Agent shall have no implied functionsreceived instructions from Requisite Lenders or all affected Lenders, responsibilities, duties, obligations or other liabilities under any Loan Documentas the case may be, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not incur liability to any person by reason of so refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Debt Document (a) if such action would, in the opinion of Agent, be contrary to law or any Debt Document, (b) if such action would, in the opinion of Agent, expose Agent to any potential liability under any law, statute or regulation or (c) if Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any duty to discloseright of action whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under any other Debt Document in accordance with the instructions of Requisite Lenders or all affected Lenders, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityas applicable.
Appears in 1 contract
Appointment of Agent. Agent is hereby irrevocably appointed by each Seller and Member as the agent and attorney in fact of each of Sellers and Members, and the initial Agent hereby accepts such appointment, to take the actions herein: (a) Each Lender to consummate the transactions contemplated hereby appoints GECC (together with any successor Agent pursuant to Section 9.7) as Agent under and cause or authorize the Loan Documents payment of Sellers’ and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising Members’ expenses incurred in connection with the Loan Documents negotiation and performance of this Agreement (including in whether incurred on or after the date of this Agreement); (b) to give and receive notices and communications; (c) to authorize or object to delivery to Purchasers or any other bankruptcyPurchaser Indemnified Party of cash in satisfaction of claims by Purchasers or any other Purchaser Indemnified Party and to distribute any funds payable by Parent or Purchasers under this Agreement that are for the benefit of Sellers pursuant to the provisions of this Agreement; (d) to deduct and/or hold back any funds that may be payable to either Seller pursuant to the terms of this Agreement in order to pay any amount that may be payable by such Seller hereunder, insolvency or similar proceeding)in each case, on a basis consistent with their Pro Rata Share; (e) to make any determinations, agree to, negotiate, enter into settlements and each Person making compromises of, any payment matters contemplated by this Agreement, including in connection with the determination or the adjustment of, or any Loan Document other matter pertaining to, the Purchase Price except for any breach by a Seller or Member hereunder for which recovery sought may be in excess of the Limitation Amount; (f) to assert any Lender is hereby authorized claim to make such payment recover Losses of Sellers, Members or other Seller Indemnified Parties, including claims for indemnification pursuant to Agent, ARTICLE IX; (iig) file to execute and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act deliver on behalf of such Lender)Seller or Member any amendment or waiver to the terms of this Agreement; (h) to retain funds for reasonably anticipated expenses and liabilities and to disburse funds to third parties for expenses and liabilities; (i) to take all actions necessary or appropriate in the judgment of Agent for the accomplishment of the foregoing; and (j) to do each and every act and exercise any and all rights which such Seller, or any or all Sellers collectively, or such Member, or any or all Members collectively, are permitted or required to do or exercise under this Agreement; provided, that such Seller and such Member (iiiand not Agent) act shall control any and all claims against such Seller or such Member, as collateral agent applicable, for breaches of such Seller’s or such Member’s representations and warranties set forth in ARTICLE III or ARTICLE IV, as applicable, or any covenant of such Seller or such Member, as applicable, hereunder if not completely covered by the Limitation Amount. A decision, act, consent or instruction of Agent shall constitute a decision of all Sellers and all Members and shall be final, binding and conclusive upon each such Seller and each Lender for purposes such Member, and Parent and Purchasers may rely upon any decision, act, consent or instruction of Agent as being the perfection decision, act, consent or instruction of all Liens created by each and every such Seller and each and every such Member without any independent obligation to investigate the Loan Documents Agent’s authority, and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary irrespective of any knowledge that they may have or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders should have with respect to the Loan Parties and/or the Collateralsubject matter of such action. Parent and Purchasers are hereby irrevocably relieved from any Liability to any Person for any acts done by them in accordance with such decision, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendmentact, consent or waiver under instruction of Agent. All such actions shall be deemed to be facts ascertainable outside this Agreement and shall be binding on Sellers and Members as a matter of contract Law. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by either Seller or any Member or by operation of Law. A new Agent may be designated by the Loan Documents on behalf then existing Indirect Individual Members at any time after not less than ten (10) days’ prior written notice to Parent and Purchasers, with such designation only to become effective upon Parent’s and Purchasers’ actual receipt of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes notice. No bond shall be required of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and Agent shall receive no compensation for its services from Purchasers or any of their Affiliates after the Closing. Notices or communications to or from Agent shall constitute notice to or from each Lender Seller and each Member for all purposes. Each Seller and each Member hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit receive correspondence from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming including by e-mail transmission to any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly e-mail address set forth in the Loan Documentsnotice provisions of this Agreement or subsequently provided to Agent by such Seller or such Member, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityas applicable.
Appears in 1 contract
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and First Union National Bank is hereby authorized, appointed to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act contractual representative on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent Lenders under this Agreement and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that . The Agent hereby appoints, authorizes and directs each Lender agrees to act as collateral sub-agent such contractual representative upon the express conditions contained in this ARTICLE X. The provisions of this SECTION 10.01 are solely for the benefit of the Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties no Borrower or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Article 9 to Agreement and the extent provided by Agent.
(c) Under the other Loan Documents, the Agent (i) is acting shall act solely on behalf as an agent of the Lenders, Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Person. The Agent shall have no duties that are entirely administrative or responsibilities except for those expressly set forth in nature, notwithstanding this Agreement and the other Loan Documents. Notwithstanding the use of the defined term “"Agent”", it is expressly understood and agreed that the Agent shall not have any fiduciary responsibilities to any Lender by reason of this Agreement and that the Agent is merely acting as the representative of the Lenders with only those duties as are expressly set forth in this Agreement and the other Loan Documents. In its capacity as the Lenders' contractual representative, the terms “agent”, “Agent” and “collateral agent” and similar terms in Agent (i) does not assume any Loan Document fiduciary duties to refer to Agent, which terms are used for title purposes onlyany of the Lenders, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee a "representative" of or for any Lender or any other Person the Lenders within the meaning of Section 9-105 of the UCC and (iii) shall have no implied functionsis acting as an independent contractor, responsibilities, duties, obligations or other liabilities under any Loan Document, the rights and each Lender, by accepting the benefits duties of the Loan Documents, hereby waives and agrees not which are limited to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as those expressly set forth in this Agreement and the other Loan Documents, . Each of the Lenders agrees to assert no claim against the Agent shall not have on any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party agency theory or any other theory of its Subsidiaries that is communicated to or obtained by GECC or liability for breach of fiduciary duty, all of which claims each Lender waives. Neither the Agent nor any of its Affiliates nor any of their respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted to be taken by it hereunder or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its or their own gross negligence or willful misconduct.
(b) If the Agent shall request instructions from all Lenders, Requisite Lenders, Requisite Revolving Lenders or all affected Lenders with respect to any capacityact or action (including failure to act) in connection with this Agreement or any other Loan Document, then the Agent shall be entitled to refrain from such act or taking such action unless and until the Agent shall have received instructions from all Lenders, Requisite Lenders, Requisite Revolving Lenders or all affected Lenders, as the case may be, and the Agent shall not incur liability to any Person by reason of so refraining. The Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Loan Document (a) if such action would, in the opinion of the Agent, be contrary to law or the terms of this Agreement or any other Loan Document, (b) if such action would, in the opinion of the Agent, expose the Agent to liabilities beyond the limits of this Agreement or (c) if the Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of all Lenders, Requisite Lenders, Requisite Revolving Lenders or all affected Lenders, as applicable.
Appears in 1 contract
Sources: Loan and Security Agreement (KMC Telecom Holdings Inc)
Appointment of Agent. (aA) Each Lender of the Lenders hereby appoints GECC (together with the Agent to act as agent hereunder and under any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents other Facility Document and authorizes the Agent to (i) execute take all actions and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rightspowers specifically provided for herein, therein or under any other agreement, document or instrument pertaining to any of the Security, as well as all actions and powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b1) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to The Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative will use its best efforts to complete, sign and file, or cause to be filed, Financing Statements naming the Company as debtor and the Agent as secured party for the Lenders, and any amendments thereto, continuation statements or other papers or filings necessary to perfect and continue its security interest in naturethe Security. Additionally, notwithstanding for each Assigned Consignee Letter of Credit, the use Agent on behalf of the defined term “Agent”, Lenders shall take assignment of all Financing Statements filed by the terms “agent”, “Agent” Company on the material or assets of the applicable Consignee. The Agent shall cause each Guarantor to execute and “collateral agent” deliver a security agreement and similar terms financing statements in any Loan Document to refer to favor of the Agent, on behalf of each Lender, with respect to the Guarantor Security. The relative rights and priorities of the Lenders in the Guarantor Security shall be governed by the Intercreditor Agreement.
(2) The Agent, on behalf of the Lenders, will receive and hold any of-the following which terms are used for delivered to the Agent by or at the direction of the Company: (i) all title purposes only, documents evidencing any Assigned Material; and (ii) is not assuming all Assigned Consignee Letters of Credit (along with any obligation related drawing documents), and such Consignee Letters of Credit (along with any related drawing documents), Consignment Agreements, Forward Contracts and other agreements or documents and other security as the Company may be required to deliver under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Facility Document. The Agent will also, on behalf of the Lenders, enter into Depository Agreements with Approved Depositories and (iii) shall have no implied functionsreceive confirmations of Confirmed Material from such Approved Depositories, responsibilities, duties, obligations or other liabilities under any Loan Documentmaintain Agent Accounts at Approved Depositories, and enter into agreements among the Agent, the Company, and an Approved Carrier with respect to the transport of Precious Metals from Agent Accounts and Approved Depositories to Agent Accounts at other Approved Depositories. Without limitation of the foregoing, the parties agree that the Agent's possession or control of any security, security interests in which may be perfected by possession or control under applicable law, shall perfect the security interest of the Agent for the ratable benefit of all Lenders.
(C) The Agent shall permit each Lender, by accepting upon request and with reasonable prior notice, to inspect all books, records and documents relating to the benefits Security, including, without limitation, all reports and other documents delivered to the Agent from time to time pursuant to any of the Loan Documents, hereby waives and agrees not Facility Documents which relate to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to discloseSecurity, and such Lender shall not be liable for failure permitted, at its expense, to disclose, make copies of any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitythereof.
Appears in 1 contract
Sources: Collateral Agency Agreement (A-Mark Precious Metals, Inc.)
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.79.6) as Agent under the Loan Debt Documents and authorizes the Agent to (ia) execute and deliver the Loan Debt Documents and accept delivery thereof on its behalf from any Loan PartyParties, (iib) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to the Agent under such Loan Debt Documents and (iiic) exercise such powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Agent and Lenders and none of Loan Parties nor any other person shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Debt Documents, Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Loan Party or any other person. Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the other Debt Documents. The duties of Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to have, by reason of this Agreement, any other Debt Document or otherwise a fiduciary or trustee relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Debt Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its affiliates in any capacity.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Debt Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person person making any payment in connection with any Loan Debt Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any proceeding described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens liens created by the Loan Debt Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens liens created or purported to be created by the Loan Debt Documents, (vi) except as may be otherwise specified in any Loan Debt Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Debt Documents, applicable Requirements of Law law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Debt Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Party with, and cash and Cash Equivalents cash equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Debt Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person person (including any Lender). Any such Person person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, If Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (iincluding failure to act) is acting solely on behalf of the Lenders, in connection with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Debt Document, then Agent shall be entitled to refrain from such act or taking such action unless and (iii) until Agent shall have no implied functionsreceived instructions from Requisite Lenders or all affected Lenders, responsibilities, duties, obligations or other liabilities under any Loan Documentas the case may be, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not incur liability to any person by reason of so refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Debt Document (a) if such action would, in the opinion of Agent, be contrary to law or any Debt Document, (b) if such action would, in the opinion of Agent, expose Agent to any potential liability under any law, statute or regulation or (c) if Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any duty to discloseright of action whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under any other Debt Document in accordance with the instructions of Requisite Lenders or all affected Lenders, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityas applicable.
Appears in 1 contract
Sources: Loan and Security Agreement (Achillion Pharmaceuticals Inc)
Appointment of Agent. (a) Each Lender Manager Shareholder hereby appoints GECC (together with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents irrevocably and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding)unconditionally appoints, and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary Participating Shareholder has or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect prior to the Loan Parties and/or Closing will appoint, the Collateral, whether under Agent to serve as the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, representative and attorney-in-fact (with full power of substitution) of each such shareholder, with the full and any other Person (including any Lender). Any such Person shall benefit from exclusive power and authority to represent and bind each of them with respect to all matters arising under and pursuant to this Article 9 Agreement and the transactions contemplated hereby, and irrevocably and unconditionally consents to the extent provided taking by Agent.
(c) Under the Loan DocumentsAgent of any and all actions and the making of any decisions required or permitted to be taken by them under this Agreement and matters arising out of or relating hereto, Agent such power and authority to include, without limitation, the power and authority (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” to give and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes onlyreceive notices or communications, (ii) is not assuming to bring, defend and/or resolve any obligation under any Loan Document other than as expressly set forth therein or any role as agentclaim made pursuant to Article IX, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functionsto agree to, responsibilitiesnegotiate, duties, obligations or other liabilities under any Loan Documententer into settlements or compromises of, and each Lendercomply with orders of courts with respect to any disputes involving, by accepting any such claims, and (iv) to take all actions necessary in the benefits judgment of the Loan DocumentsAgent for the accomplishment of the foregoing. By his execution of this Agreement, the Agent hereby waives accepts his appointment as the Agent for purposes of this Agreement. REIT shall be entitled to deal exclusively with the Agent on all matters relating to this Agreement with respect to or that otherwise concern any Manager Shareholder or any Participating Shareholder and/or his rights under this Agreement or in connection with the transactions contemplated hereby, including Article IX hereof, and agrees not shall be entitled to assert rely conclusively (without further evidence of any claim against kind whatsoever) on any document executed or purported to be executed by the Agent based on behalf of any Manager Shareholder or any Participating Shareholder, and on any other action taken or purported to be taken by the rolesAgent on behalf of any Manager Shareholder or any Participating Shareholder, duties and legal relationships expressly disclaimed in clauses (i) through (iii) aboveas fully binding upon such Person. Except as expressly set forth in If the Loan Documents, Agent shall die, become disabled or otherwise be unable to fulfill his responsibilities hereunder then, within thirty (30) days after such death or disability, a successor representative shall be appointed by the Manager Shareholders other than the Agent holding a majority in interest of the REIT Shares to be received from escrow by all Manager Shareholders in connection with the Mergers. Any such successor shall become the "Agent" for purposes of this Agreement. The Agent may be replaced by the Manager Shareholders holding a majority in interest of the REIT Shares to be received from escrow by all Manager Shareholders in connection with the Mergers at any time and from time to time pursuant to a written consent by such Manager Shareholders holding a majority in interest of such REIT shares; provided that the Manager Shareholders provide written notice to REIT and the other parties hereto of such replacement; provided further, that such replacement shall not have any duty to disclosebe effective until receipt of such notice, and all parties hereto shall be entitled to deal exclusively with the Agent until receipt of such notice. The Agent shall not be liable for failure to disclose, any information relating to any Loan Party party hereto or to any Manager Shareholder or any Participating Shareholder for any error of judgment, or any action taken, suffered or omitted to be taken on behalf of such Persons (or any of its Subsidiaries that is communicated them), except in the case of his gross negligence or bad faith. The Agent may consult with counsel of his own choice and shall have full and complete authorization and protection for any action taken or suffered by him hereunder in good faith and in accordance with the opinion of such counsel. The Manager Shareholders hereby irrevocably agree, jointly and severally, (i) to indemnify the Agent for, and hold him harmless against, any loss, liability or obtained expense, including, without limitation, reasonable attorneys' fees and expenses, incurred without gross negligence or bad faith on the part of such Agent, arising out of, or in connection with, any action or decision taken or made by GECC Agent on behalf of any Manager Shareholder or any Participating Shareholder and (ii) to be bound by all actions taken by the Agent in his capacity as such. All reasonable expenses (including reasonable attorneys' fees and expenses) incurred by the Agent in connection with the performance of its Affiliates in duties hereunder shall be paid by the Manager Shareholders. REIT, the Acquisition Companies and the Service Providers shall have no liability whatsoever for any capacityfees, costs or other expenses incurred by the Agent.
Appears in 1 contract
Sources: Merger Agreement (Inland Retail Real Estate Trust Inc)
Appointment of Agent. (a) Each Lender and each Issuing Bank hereby appoints GECC Ares Capital Corporation (together with any successor Agent pursuant to Section 9.79.9) as the Administrative Agent under and the Loan Documents Collateral Agent hereunder and authorizes each such Agent to (i) execute and deliver the Loan Credit Documents and accept delivery thereof on its behalf from any Loan Credit Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to such Agent under such Loan Credit Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion . In furtherance of the Lenders)foregoing, each of the Lenders (including in its capacity as a potential Secured Swap Provider or a Bank Product Provider) hereby irrevocably appoints and is hereby authorized, authorizes the Collateral Agent to (i) act as the disbursing agent of (and collecting agent to hold any security interest created by the Collateral Documents for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of or in trust for) such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of acquiring, holding and enforcing any and all Liens created on Collateral granted by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority any of the Liens created or purported Credit Parties to be created by the Loan Documents, (vi) except as may be otherwise specified in secure any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens Obligations, together with respect to such powers and discretion as are reasonably incidental thereto. In this connection, the CollateralCollateral Agent (and any co-agents, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorneyattorneys-in-fact appointed by the Collateral Agent pursuant to Section 9.4 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and any other Person remedies thereunder at the direction of the Collateral Agent), will be entitled to the benefits of all provisions of this Section 9 (including any LenderSection 9.8(b). Any , as though such Person shall benefit from this Article 9 to co-agents, sub-agents and attorneys-in-fact were the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (iiunder the Credit Documents) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly if set forth in full herein with respect thereto. The provisions of this Section 9 are solely for the Loan Documentsbenefit of the Agents, Agent shall not the Issuing Banks and the Lenders and no Credit Party will have any duty to discloserights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties hereunder, each Agent will act solely as an agent of the Lenders and shall does not assume and will not be liable deemed to have assumed any obligation towards or relationship of agency or trust with or for failure to disclose, any information relating to any Loan Party the Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitySubsidiary.
Appears in 1 contract
Appointment of Agent. By accepting the benefits of this Agreement, each of the Secured Parties appoints JPMorgan Chase Bank, N.A. to act, and JPMorgan Chase Bank, N.A. agrees to act, as Agent for the Secured Parties pursuant to the terms of this Agreement and the other Collateral Documents and to execute and enter into this Agreement and the other Collateral Documents and all other instruments relating to this Agreement and the other Collateral Documents and (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof take actions on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as that are expressly delegated to Agent permitted under such Loan Documents the provisions of this Agreement and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated thereininstruments or agreements relating hereto or thereto and (b) to exercise such powers and perform such duties as are, (iv) managein each case, supervise and otherwise deal with expressly delegated to the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created Agent by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent terms hereof and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements thereof. By acceptance of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of this Agreement, each Secured Party that is not a party to this Agreement shall be deemed to have consented to the Loan Documents, hereby waives appointment and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly authorization set forth in the Loan Documentsimmediately preceding sentence. THE AGENT HAS CONSENTED TO SERVE AS AGENT HEREUNDER ON THE EXPRESS UNDERSTANDING, Agent shall not have any duty to discloseAND THE SECURED PARTIES, and shall not be liable for failure to discloseBY ACCEPTING THE BENEFITS OF THIS AGREEMENT, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitySHALL BE DEEMED TO HAVE AGREED, THAT THE AGENT SHALL HAVE NO DUTY AND SHALL OWE NO OBLIGATION OR RESPONSIBILITY (FIDUCIARY OR OTHERWISE), REGARDLESS OF WHETHER AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, TO THE SECURED PARTIES, OTHER THAN THE DUTY TO PERFORM ITS EXPRESS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER COLLATERAL DOCUMENTS IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, SUBJECT IN ALL EVENTS TO THE PROVISIONS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS LIMITING THE RESPONSIBILITY OR LIABILITY OF THE AGENT HEREUNDER.
Appears in 1 contract
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.79.9) as Agent under the Loan Debt Documents and authorizes the Agent to (ia) execute and deliver the Loan Debt Documents and accept delivery thereof on its behalf from any Loan PartyParties, (iib) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to the Agent under such Loan Debt Documents and (iiic) exercise such powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Agent and Lenders and none of Loan Parties nor any other person shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Debt Documents, Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Loan Party or any other person. Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the other Debt Documents. The duties of Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to have, by reason of this Agreement, any other Debt Document or otherwise a fiduciary or trustee relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Debt Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its affiliates in any capacity.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Debt Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person person making any payment in connection with any Loan Debt Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any proceeding described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens liens created by the Loan Debt Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, other than any release of a security interest in the Collateral requiring the consent of Requisite Lenders or all Lenders under Sections 10.8(b) or 10.8(c) (provided that Agent may so release such security interest if such consent is obtained), (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens liens created or purported to be created by the Loan Debt Documents, (vi) except as may be otherwise specified in any Loan Debt Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Debt Documents, applicable Requirements of Law law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Debt Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Party with, and cash and Cash Equivalents cash equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Debt Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person person (including any Lender). Any such Person person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, If Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (iincluding failure to act) is acting solely on behalf of the Lenders, in connection with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Debt Document, then Agent shall be entitled to refrain from such act or taking such action unless and (iii) until Agent shall have no implied functionsreceived instructions from Requisite Lenders or all affected Lenders, responsibilities, duties, obligations or other liabilities under any Loan Documentas the case may be, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not incur liability to any person by reason of so refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Debt Document (a) if such action would, in the opinion of Agent, be contrary to law or any Debt Document, (b) if such action would, in the opinion of Agent, expose Agent to any potential liability under any law, statute or regulation or (c) if Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any duty to discloseright of action whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under any other Debt Document in accordance with the instructions of Requisite Lenders or all affected Lenders, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityas applicable.
Appears in 1 contract
Sources: Loan and Security Agreement (Salient Surgical Technologies, Inc.)
Appointment of Agent. (a) Each Lender Transferor/Agent is hereby appoints GECC (together with any successor appointed agent for the parties to act as herein specified, and acting in the manner into the extent provided in this Article XI, Transferor/Agent pursuant accepts such appointment. Transferor/Agent is hereby irrevocably authorized to Section 9.7) as Agent receive payments of principal, interest and other amounts due under the Loan Documents and authorizes otherwise to take such action on behalf of the parties, to exercise such powers and to perform such duties under the Loan Documents as are specifically delegated to, or required of the Bank by the terms of the Loan Documents, together with all other powers reasonably incidental thereto, which authorization permits the Transferor/Agent to (i) execute perform any of its duties under the Loan Documents by or through its agents, attorneys or employees. The Transferor/Agent shall have no duties or responsibilities except those expressly set forth with respect to it in this Agreement and deliver the Loan Documents. The relationship of the Transferor/Agent to the Transferee is only that of one entity acting solely as an administrative agent for another, and nothing in this Agreement or the Loan Documents, express or implied, is intended to, or shall be construed to, constitute the Transferor/Agent a trustee or other fiduciary for the Transferee, or any holder of any of the Notes, nor to impose on the Transferor/Agent duties and obligations other than those expressly provided for in this Agreement and the Loan Documents. As to any matters not expressly provided for in this Agreement or the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and matters to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with which either this Agreement or the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to place within the discretion of the Transferor/Agent, the Transferor/Agent shall not be required to exercise any discretion or take any action (ii) file and prove claims and file other documents necessary or desirable to allow it may request instructions from the claims of Agent and Lenders parties with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lendermatter), in which case it shall be required to act or refrain from acting (iii) act as collateral agent for Agent and each Lender for purposes shall be fully protected and free from liability to the parties in so acting or refraining from acting)upon the instructions of the perfection of parties (including itself), and such instructions shall be binding upon all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiverparties; provided, however, that (I) the Transferor/Agent hereby appoints, authorizes and directs each Lender shall in all cases be fully justified in failing or refusing to act under this Agreement or any Loan Documents unless it shall be indemnified to its satisfaction by the parties against any and all liability and expense(other than any such liability or expense proximately caused by the Transferor/Agent's gross negligence or willful misconduct as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained determined by a Loan Party withfinal judgment) which may be incurred by reason of taking or continuing to take any such action, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct (ii) the Lenders Transferor/Agent shall not in any event be required to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise any action which (A) is contrary to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect tothis Agreement, any Loan Document by or through any trusteeLaws, co-agent, employee, attorney-in-fact and any other Person or (including any Lender). Any such Person shall benefit from this Article 9 B) exposes it to the extent provided by Agenta risk of personal liability that it considers unreasonable.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacity.
Appears in 1 contract
Appointment of Agent. Solicitation by the Agent of Offers to Purchase; Sales of Notes to a Purchaser.
(a) Each Lender Subject to the terms and conditions set forth herein, the Company hereby appoints GECC the Agents to act as its agents for the purpose of soliciting offers to purchase all or part of the Notes from the Company upon the terms set forth in the Prospectus, as amended or supplemented from time to time, and in the Procedures. The Company shall have the right to appoint additional persons to act as its agents for such purposes upon three days prior notice to the Agents then acting hereunder so long as any such additional persons become parties to this Agreement upon the same terms and conditions as shall then be applicable to such Agents. So long as this Agreement shall remain in effect with respect to any Agents, the Company shall not, without the consent of such Agents, solicit offers to purchase Notes otherwise than through one of such Agents, except as contemplated by Section 1(g) hereof and except that nothing contained herein shall be construed to prevent the Company from selling Notes at any time (together with any successor Agent x) in a firm commitment underwriting pursuant to Section 9.7an underwriting agreement which does not provide for a continuous offering of such Notes or (y) as Agent under directly to investors other than the Loan Documents Purchasers, and authorizes Agent no commission shall be payable to (i) execute the Agents with respect to any such sales. The Company also reserves the right to sell Notes through agents other than pursuant to this Agreement where offers to purchase are received through such agents on an unsolicited basis. Settlement of such sales will be on substantially the same terms and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties conditions as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental theretocontained herein, including commissions.
(b) Without limiting On the generality basis of clause (a) abovethe representations and warranties set forth herein, Agent shall have the sole and exclusive right and authority (but subject to the exclusion terms and conditions set forth herein, each Agent agrees to use its reasonable efforts, as agent of the Lenders)Company, to solicit offers to purchase Notes from the Company upon the terms set forth in the Prospectus, as amended or supplemented from time to time, and is hereby authorizedin the Procedures. Subject to the provisions of Section 1(c) and to the Procedures, to (i) act as the disbursing and collecting agent offers for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims purchase of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as Notes may be otherwise specified solicited at such times and in any Loan Document, exercise all remedies given such amounts as each Agent may from time to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agenttime deem advisable.
(c) Under The Company reserves the Loan Documentsright, in its sole discretion, to suspend solicitation of offers to purchase Notes from the Company at any time for any period of time or permanently. Upon receipt of at least one business day's prior notice from the Company, the Agents forthwith will suspend their solicitation of offers to purchase Notes from the Company until such time as the Company has advised the Agents that such solicitation may be resumed.
(d) Each Agent (i) will communicate to the Company, orally or in writing, each offer to purchase Notes from the Company that is acting solely on behalf received by such Agent as agent of the LendersCompany and that is not rejected by such Agent as provided below. The Company will have the sole right to accept offers to purchase Notes from the Company and may reject any such offer, in whole or in part, for any reason. Each Agent may, without notice to the Company, in its discretion reasonably exercised, reject any offer to purchase Notes from the Company that is received by such Agent, in whole or in part, and any such rejection shall not be deemed a breach of such Agent's agreements contained herein.
(e) The Company agrees to pay each Agent a commission, on the Closing Date with respect to each sale of Notes by the Company as a result of a solicitation made by such Agent, in an amount equal to that percentage specified in Schedule I hereto of the aggregate principal amount of each Note sold by the Company. Such commission shall be payable as specified in the Procedures. The commission rates may be amended from time to time by written agreement of the Company and the Agents. The Terms Agreement may specify any concessions allowed or reallowed or paid to dealers.
(f) Each of you agrees, with duties that are entirely administrative respect to any Note denominated in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document a currency other than as expressly set forth therein or any role U.S. dollars, as agent, fiduciary directly or trustee of or for any Lender or any other Person indirectly, not to solicit offers to purchase, and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities as principal under any Loan DocumentTerms Agreement or otherwise, directly or indirectly, not to offer, sell or deliver, such Note in, or to residents of, the country issuing such currency (or, if such Note is denominated in a composite currency, in any country issuing a currency comprising a portion of such composite currency), except as permitted by applicable law.
(g) Subject to the terms and conditions stated herein, whenever the Company and you determine that the Company shall sell Notes directly to any or all of you acting as principal (the "Purchaser"), each such sale of Notes shall be made in accordance with the terms of this Agreement and any supplemental agreement relating thereto between the Company and the Purchaser. Each such supplemental agreement (which shall be substantially in the form of Annex B) is herein referred to as a "Terms Agreement". The Purchaser's commitment to purchase Notes pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall describe the Notes to be purchased by the Purchaser pursuant thereto, specify the maturity and principal amount of such Notes, the price to be paid to the Company for such Notes, the rate at which interest will be paid on the Notes, the Closing Date for such Notes, the place of delivery of the Notes and payment therefor, the method of payment and any modification of the requirements for the delivery of the opinions of counsel, the certificates from the Company or its officers, and each Lenderthe letter from the Company's independent public accountants, by accepting pursuant to Section 7(c). Such Terms Agreement shall also specify the benefits period of time referred to in Section 5(l). The Terms Agreement may specify the terms upon which any Agent may resell any Notes to other dealers. Delivery of the Loan Documentscertificates if the Notes are certificated, hereby waives or entry into the books of the Depository Trust Company if the Notes are book-entry Notes, for Notes sold to the Purchaser pursuant to any Terms Agreement shall be made as agreed to between the Company and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except Purchaser as expressly set forth in the Loan Documentsrespective Terms Agreement, Agent shall not have any duty later than the Closing Date set forth in such Terms Agreement, against payment of funds to disclose, the Company in the amount due to the Company for such Notes by the method and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitythe form set forth in the respective Terms Agreement.
Appears in 1 contract
Sources: Distribution Agreement (Ashland Inc)
Appointment of Agent. OWNER ▇▇▇▇▇▇ appoints AGENT as sole and exclusive agent of OWNER to manage the PREMISES described in paragraph 2.2 upon the terms and conditions provided herein. AGENT accepts the appointment and agrees to furnish the services of its organization for the management of the PREMISES.
2.1 The property to be managed by AGENT under this AGREEMENT (the “PREMISES”) is located at: <property address> <city>, <state> <zip>
2.2 This AGREEMENT is on a month-to-month basis, commencing on the <date> day of <month>, 20<year>, and either party may terminate this AGREEMENT upon 30 days’ written notice delivered to the other party.
2.3 If OWNER is not an individual, OWNER is a: estate corporation limited liability company (LLC) Each Lender hereby appoints GECC trust partnership limited partnership (together with any successor Agent pursuant LLP), which entity was chartered or created in <state>. The individual signing this agreement for the OWNER represents and warrants to Section 9.7) as Agent AGENT that he or she has unconditional authority to bind OWNER to this AGREEMENT, to act for OWNER, and is acting under the Loan Documents capacity as agent for the OWNER and authorizes Agent that the PREMISES are not subject to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such current legal action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent or foreclosure. Any individual OWNER shall have the sole authority to hereafter act and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders enter into further agreements with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act AGENT on behalf of such Lender)all OWNERS.
2.4 OWNER represents and warrants that they are not bound by another agreement for the sale, (iii) act as collateral agent for Agent and each Lender for purposes exchange, lease, or management of the perfection PREMISES that is or will be in effect during the term of this AGREEMENT or an agreement or covenant that would prohibit AGENT to lease the PREMISES.
2.5 OWNER acknowledges that all Liens created by property intake information is complete and accurate and agrees to hold AGENT harmless for any incomplete and/or inaccurate information
2.6 OWNER authorizes AGENT to contract for services to include but not limited to, water, sewer, garbage, gas, electric, irrigation, yard care and maintenance agreements. OWNER to assume the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf obligation of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directedcontracts entered. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacity.Owner Initials
Appears in 1 contract
Sources: Management Agreement
Appointment of Agent. (a) Each Lender hereby appoints GECC (together By the adoption of the Merger, and by receiving the benefits thereof, including any consideration payable hereunder, each Equityholder shall be deemed to have approved and appointed Shareholder Representative Services LLC as of the Closing as the representative, agent and attorney-in-fact of the Equityholders for all purposes in connection with any successor Agent pursuant this Agreement and the agreements ancillary hereto. All such actions shall be deemed to Section 9.7) as Agent under be facts ascertainable outside this Agreement and shall be binding on the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Equityholders. Without limiting the generality of clause (a) aboveforegoing, Agent shall have the sole authority:
(a) to consummate the transactions contemplated herein and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising pay such Equityholders’ expenses incurred in connection with the Loan Documents negotiation and performance of this Agreement (including in whether incurred prior to, on or after the date of this Agreement);
(b) to give and receive notices and communications;
(c) to authorize or object to delivery to Purchaser or any other bankruptcyIndemnified Party of cash from the Escrow Fund in satisfaction of claims by Purchaser or any other Indemnified Party and to facilitate the distribution of any funds payable by Purchaser under this Agreement that are for the benefit of Indemnifying Parties that are released from the Escrow Fund for the benefit of the Indemnifying Parties pursuant to the provisions of this Agreement;
(d) to deduct or hold back any funds that may be payable to any Indemnifying Party pursuant to the terms of this Agreement and the Escrow Agreement in order to pay any amount that may be payable by such Indemnifying Party hereunder, insolvency or similar proceeding)in each case on a basis consistent with their Percentage;
(e) to make any determinations with respect to, agree to, negotiate, and each Person making enter into settlements and compromises of any payment matters contemplated by this Agreement, including in connection with the determination or the adjustment of, or any Loan Document other matter pertaining to, the Purchase Price;
(f) to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders comply with Orders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding matters contemplated by this Agreement;
(but not g) to vote, consent or otherwise act execute and deliver on behalf of such Lender)Equityholder any amendment or waiver to the terms of this Agreement;
(h) to disburse funds to third parties for expenses and liabilities;
(i) to engage, employ and obtain the advice of legal counsel, accountants and other professional advisors and rely on their advice and counsel, and to incur and pay fees and expenses of such advisors;
(iiij) act as collateral agent to take all actions necessary or appropriate in the judgment of Agent for Agent and each Lender for purposes the accomplishment of the perfection of all Liens created foregoing or permitted or required by the Loan Documents terms of this Agreement or the Escrow Agreement; and
(k) to do each and every act and exercise any and all other purposes stated thereinrights that such Equityholder, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority any or all of the Liens created Equityholders collectively, are permitted or purported required to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate do or exercise any under this Agreement. This grant of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person authority (including any Lender). Any such Person shall benefit from the appointment of agency and this Article 9 to the extent provided by Agent.
(cpower of attorney) Under the Loan Documents, Agent (i) is acting solely coupled with an interest and will be irrevocable and will not be terminated by any Equityholder or by operation of Law, whether by the death, incompetence, bankruptcy, liquidation or incapacity of any Equityholder or the occurrence of any other event, and any action taken by Agent will be as valid as if such death, incompetence, bankruptcy, liquidation, incapacity or other event had not occurred, regardless of whether or not any Equityholder or Agent will have received any notice thereof and shall be binding on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” any successor thereto and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming shall survive the delivery of an assignment by any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits Equityholder of the Loan Documentswhole or fraction of his, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth her or its interest in the Loan DocumentsEscrow Fund. Agent may resign at any time. A new Agent may be designated by the holders at Closing of a majority in interest of the Escrow Fund upon not less than 10 days’ prior written notice to Purchaser. No bond shall be required of Agent. After the Closing, notices or communications to or from Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated constitute notice to or obtained by GECC or any from each of its Affiliates in any capacitythe Equityholders.
Appears in 1 contract
Appointment of Agent. (aA) Each Lender of the Lenders hereby appoints GECC (together with the Agent to act as agent hereunder and under any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents other Facility Document and authorizes the Agent to (i) execute take all actions and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rightspowers specifically provided for herein, therein or under any other agreement, document or instrument pertaining to any of the Collateral, as well as all actions and powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b1) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to The Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative will use its best efforts to complete and file, or cause to be filed, Financing Statements naming the Company as debtor and the Agent as secured party for the Lenders, and any amendments thereto, continuation statements or other papers or filings necessary to perfect and continue its security interest in naturethe Collateral. Additionally, notwithstanding for each Assigned Consignee Letter of Credit, the use Agent on behalf of the defined term “Agent”, Lenders shall take assignment of all Financing Statements filed by the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Company on the material or assets of the applicable Consignee.
(2) The Agent, on behalf of the Lenders, will receive and hold any of the following which terms are used for delivered to the Agent by or at the direction of the Company: (i) all title purposes only, documents evidencing any Assigned Material or Assigned Material in Transit; and (ii) is not assuming all Assigned Consignee Letters of Credit (along with any obligation related drawing documents), and such Consignee Letters of Credit (along with any related drawing documents), Consignment Agreements, and other agreements or documents and other security as the Company may be required to deliver under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Facility Document. The Agent will also, on behalf of the Lenders, enter into Depository Agreements with Approved Depositories and receive confirmations of Confirmed Material from such Approved Depositories, maintain Agent Accounts at Approved Depositories, enter into agreements with the Company and Approved Carriers with respect to the transport of Precious Metals from Agent Accounts and Approved Depositories to Agent Accounts at other Approved Depositories, and enter into commodity account control agreements (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Documenttripartite agreements having similar effect) with, and receive confirmations from, Approved Brokers with respect to Broker Accounts. Without limitation of the foregoing, the parties agree that the Agent’s possession or control of any security, the security interests in which may be perfected by possession or control under applicable law, shall perfect the security interest of the Agent for the ratable benefit of all Lenders in such Collateral.
(C) The Agent shall permit each Lender, by accepting upon request and with reasonable prior notice, to inspect all books, records and documents relating to the benefits Collateral, including, without limitation, all reports and other documents delivered to the Agent from time to time pursuant to any of the Loan Documents, hereby waives and agrees not Facility Documents which relate to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to discloseCollateral, and such Lender shall not be liable for failure permitted, at its expense, to disclose, make copies of any information relating thereof.
(D) BBH shall only assert its right of set-off with respect to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates monies on deposit in any capacityaccount covered by a Cash Collateral Agreement, in its capacity as Agent for the Lenders, including itself.
Appears in 1 contract
Sources: Collateral Agency and Intercreditor Agreement (A-Mark Precious Metals, Inc.)
Appointment of Agent. (a) Each Lender hereby appoints GECC The Bank may at Borrower‟s costs, risk and responsibility in all respects, appoint and remove from time to time any agent (together with any successor Agent pursuant to Section 9.7“the Agent”) as Agent for the purpose of collection or realization of the proceeds of Bills which the Bank may have accepted for collection under the Loan above facility, and the Borrower agrees that the Agent for the time being shall be deemed to be Borrower‟s agent for collection or realization of the proceeds of Bills for ▇▇▇▇▇▇▇▇‟s account. The Bank or the Agent may send the Bills and the Documents to the Drawee or acceptor thereof either by post or any other agency, entirely at Borrower‟s risk and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental theretoresponsibility.
(b) Without limiting The Bank or the generality of clause (a) above, Agent shall have may at Borrower‟s option accept or receive from the sole and exclusive right and authority (to drawee or the exclusion acceptor of the Lenders)Bills, any cheque, bank draft or other mandate for payment in lieu of cash, for full settlement of the Bill and is hereby authorizedif any such instrument cannot be conveniently collected by the Bank or the Agent through normal banking channel, then the Borrower consents to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including its collection in any other bankruptcymanner which the Bank or the Agent may deem fit.
c) The Bank and the Agent appointed for the purpose of collection or realization of the proceeds of the Bills which the Bank may have purchased, insolvency discounted or similar proceeding)negotiated under the above facility, and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation shall be at liberty without in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect way affecting Bank‟s absolute recourse to the Loan Parties and/or Borrower on the CollateralBills and without prejudice to Bank‟s rights thereunder or hereunder, whether under the Loan Documents, applicable Requirements of Law to hold any collateral securities or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties grant time or any other action indulgence to or receive payments before maturity or accept part payments after maturity of any Bill from or make any arrangement or compromise with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 forebear to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”sue, the terms “agent”, “Agent” and “collateral agent” and similar terms in drawee or acceptor of any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender Bill or any other Person person liable thereon and (iiithe Borrower hereby expressly consents to the Bank or the Agent doing the foregoing without reference to the Borrower, it being understood that the Borrower‟s liability on the Bills shall cease only upon payment to the Bank of all moneys in respect thereof in accordance with the terms hereof.
d) It shall be lawful for the Bank or the Agent from time to time to have no implied functions, responsibilities, duties, obligations any goods/consignments covered by the Documents valued by an Appraiser or other liabilities under any Loan Document, and each Lender, Valuer to be appointed by accepting the benefits Bank or the Agent. The expenses of such valuation including fees of the Loan Documents, hereby waives and agrees not Appraiser or Valuer shall be debited to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityBorrower‟s aforesaid account.
Appears in 1 contract
Sources: Credit Facility Agreement
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant In order to Section 9.7) as Agent under the Loan Documents and authorizes Agent to efficiently administer (i) execute the execution and deliver delivery of the Loan Transaction Documents and accept delivery thereof any certificates, instruments or other documents to be delivered on its behalf from of the Sellers, or any Loan Partyof them, in connection with the Closing, (ii) take such action on its behalf the fulfillment of any condition to the obligations of Buyer and the waiver of any condition to exercise all rightsthe obligations of the Sellers to consummate the transactions contemplated hereby, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers the defense and/or settlement of any claims for which the Sellers’ may be required to indemnify Buyer pursuant to Article VIII hereof, each of the Sellers hereby designates MMGP as are reasonably incidental theretotheir representative (the “Sellers’ Representative”) and attorney-in-fact for the purposes set forth in this Section 10.13.
(b) Without limiting The Sellers hereby authorize the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to Sellers’ Representative (i) act as to execute and deliver any Transaction Documents and certificates, instruments or other documents to be delivered on behalf of the disbursing and collecting agent for the Lenders with respect to all payments and collections arising Sellers, or any of them, in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to AgentClosing , (ii) file to take all action necessary in connection with the fulfillment of any condition to the obligations of Buyer and prove the waiver of any condition to the obligations of the Sellers to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims and file other documents necessary for which the Sellers may be required to indemnify Buyer or desirable the Company pursuant to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender)Article VIII hereof, (iii) act as collateral agent for Agent to give and each Lender for purposes of receive all notices required to be given under the perfection of all Liens created by the Loan Documents Agreement, and all other purposes stated therein, (iv) manage, supervise to take any and otherwise deal with the Collateral, (v) take such other all additional action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported contemplated to be created taken by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes Sellers by the terms of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by AgentAgreement.
(c) Under All decisions and actions by the Loan DocumentsSellers’ Representative, Agent including, without limitation, any agreement between the Sellers’ Representative and Buyer relating to the defense or settlement of any claims for which the Sellers may be required to indemnify Buyer and/or the Company pursuant to Article VIII hereof, shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, protest or otherwise contest the same.
(d) By their execution of this Agreement, the Sellers agree that:
(i) is acting solely Buyer shall be able to rely conclusively on behalf the instructions and decisions of the LendersSellers’ Representative as to the settlement of any claims for indemnification by Buyer pursuant to Article VIII hereof or any other actions required to be taken by the Sellers’ Representative hereunder, with duties that are entirely administrative and no party hereunder shall have any cause of action against Buyer for any action taken by Buyer in nature, notwithstanding reliance upon the use instructions or decisions of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, Sellers’ Representative;
(ii) is not assuming all actions, decisions and instructions of the Sellers’ Representative shall be conclusive and binding upon all of the Sellers and no Seller shall have any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee cause of or action against the Sellers’ Representative for any Lender action taken, decision made or any other Person and instruction given by the Sellers’ Representative under this Agreement, except for fraud or willful breach of this Agreement by the Sellers’ Representative; and
(iii) shall have no implied functionsthe provisions of this Section 10.13 are independent and severable, responsibilities, duties, obligations or other liabilities under any Loan Document, are irrevocable and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, coupled with an interest and shall not be liable for failure to disclose, enforceable notwithstanding any information relating to rights or remedies that any Loan Party or any of its Subsidiaries that is communicated to or obtained Seller may have in connection with the transactions contemplated by GECC or any of its Affiliates in any capacitythis Agreement.
Appears in 1 contract
Appointment of Agent. (a) Each Lender and each Issuing Bank hereby appoints GECC JPMorgan (together with any successor Agent pursuant to Section 9.79.9) as the Administrative Agent under and the Loan Documents Collateral Agent hereunder and authorizes each such Agent to (i) execute and deliver the Loan Credit Documents and accept delivery thereof on its behalf from any Loan Credit Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to such Agent under such Loan Credit Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion . In furtherance of the Lenders)foregoing, each of the Lenders (including in its capacity as a potential Secured Swap Provider or a Bank Product Provider) hereby irrevocably appoints and is hereby authorized, authorizes the Collateral Agent to (i) act as the disbursing agent of (and collecting agent to hold any security interest created by the Collateral Documents for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of or in trust for) such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of acquiring, holding and enforcing any and all Liens created on Collateral granted by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority any of the Liens created or purported Credit Parties to be created by the Loan Documents, (vi) except as may be otherwise specified in secure any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens Obligations, together with respect to such powers and discretion as are reasonably incidental thereto. In this connection, the CollateralCollateral Agent (and any co-agents, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorneyattorneys-in-fact appointed by the Collateral Agent pursuant to Section 9.4 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and any other Person remedies thereunder at the direction of the Collateral Agent), will be entitled to the benefits of all provisions of this Section 9 (including any LenderSection 9.8(b). Any , as though such Person shall benefit from this Article 9 to co-agents, sub-agents and attorneys-in-fact were the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (iiunder the Credit Documents) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly if set forth in full herein with respect thereto. The provisions of this Section 9 are solely for the Loan Documentsbenefit of the Agents, Agent shall not the Issuing Banks and the Lenders and no Credit Party will have any duty to discloserights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties hereunder, each Agent will act solely as an agent of the Lenders and shall does not assume and will not be liable deemed to have assumed any obligation towards or relationship of agency or trust with or for failure to disclose, any information relating to any Loan Party the Company or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitySubsidiary.
Appears in 1 contract
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.79.6) as Agent under the Loan Debt Documents and authorizes Agent to (ia) execute and deliver the Loan Debt Documents and accept delivery thereof on its behalf from any Loan PartyParties, (iib) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Debt Documents and (iiic) exercise such powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Agent and Lenders and none of Loan Parties nor any other person shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Debt Documents, Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Loan Party or any other person. Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the other Debt Documents. The duties of Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to have, by reason of this Agreement, any other Debt Document or otherwise a fiduciary or trustee relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Debt Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its affiliates in any capacity. Without limiting the generality of the foregoing, each Lender acknowledges that it has received a copy of the Subordination Agreement, consents to and authorizes Agent’s execution and delivery thereof on behalf of such Lender and agrees to be bound by the terms and provisions thereof.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Debt Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person person making any payment in connection with any Loan Debt Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any proceeding described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Debt Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Debt Documents, (vi) except as may be otherwise specified in any Loan Debt Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Debt Documents, applicable Requirements of Law law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Debt Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Debt Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person person (including any Lender). Any such Person person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Each Lender, by accepting the benefits of the Loan Debt Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses that (i) through any action taken by Agent or Requisite Lenders (or, if expressly required in any Debt Document, a greater proportion of the Lenders) in accordance with the provisions of the Debt Documents, (ii) any action taken by Agent in reliance upon the instructions of Requisite Lenders (or, where so required, such greater proportion) and (iii) above. Except as expressly the exercise by Agent or Requisite Lenders (or, where so required, such greater proportion) of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of Lenders to the extent so authorized or required, and subject to applicable law.
(d) If Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (including failure to act) in connection with this Agreement or any other Debt Document, then Agent shall be entitled to refrain from such act or taking such action unless and until Agent shall have received instructions from Requisite Lenders or all affected Lenders, as the Loan Documentscase may be, and Agent shall not incur liability to any person by reason of so refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Debt Document (i) if such action would, in the opinion of Agent, be contrary to law or any Debt Document, (ii) if such action would, in the opinion of Agent, expose Agent to any potential liability under any law, statute or regulation or (iii) if Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any duty right of action whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under any other Debt Document in accordance with the instructions of Requisite Lenders or all affected Lenders, as applicable.
(e) Agent is hereby authorized by each Loan Party and each Lender to discloseestablish procedures (and to amend such procedures from time to time) to facilitate administration and servicing of the Term Loan and other matters incidental thereto in its reasonable discretion. Without limiting the generality of the foregoing, Agent is hereby authorized to establish procedures to make available or deliver, or to accept, notices, documents and similar items on, by posting to or submitting and/or completion, on E-Systems. Each Loan Party and each Lender acknowledges and agrees that the use of transmissions via an E-System or electronic mail is not necessarily secure and that there are risks associated with such use, including risks of interception, disclosure and abuse, and each Loan Party and each Lender assumes and accepts such risks by hereby authorizing the transmission via E-Systems or electronic mail. Each “e-signature” on any such posting shall not be liable deemed sufficient to satisfy any requirement for failure a “signature”, and each such posting shall be deemed sufficient to disclosesatisfy any requirement for a “writing”, in each case including pursuant to any Debt Document, any information relating to applicable provision of any Loan Party UCC, the federal Uniform Electronic Transactions Act, the Electronic Signatures in Global and National Commerce Act and any substantive or any procedural Requirement of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacity.Law governing such
Appears in 1 contract
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding)The Sellers, and each Person making of them, hereby irrevocably constitute and appoint West ("AGENT") as their agent and attorney-in-fact to modify, amend or otherwise change this Agreement or any payment in connection with any Loan Document of its terms or provisions (including modifications, amendments or changes subsequent to any Lender is hereby authorized Closing), to make such payment take all actions and to Agent, (ii) file and prove claims and file other execute all documents necessary or desirable to allow consummate the claims of Agent transactions contemplated by this Agreement, and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not take all actions and to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of execute all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is documents which may be necessary or desirable in connection therewith, to maintain give and receive consents and all notices hereunder, to negotiate and settle claims for indemnification under this Agreement, and to perform any other act arising under or pertaining to this Agreement and the perfection and priority of transactions contemplated hereby. Notwithstanding the Liens created or purported to be created by the Loan Documentspreceding sentence, (via) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty the right to discloseso modify, and shall not be liable for failure to disclose, any information relating to any Loan Party amend or otherwise change this Agreement or any of its Subsidiaries terms or provisions after the Sellers have approved the Merger and the transactions contemplated hereby, except in respect of any such modifications, amendments or changes which do not reduce substantially the rights or benefits of the Sellers under this Agreement and (b) the individual Sellers shall have the right to make any permitted elections between the receipt of cash or Common Stock as part of the Merger Consideration. The Sellers, and each of them, agree that is communicated to or obtained by GECC or any service of its Affiliates process upon Agent in any capacityAction arising under or pertaining to this Agreement shall be deemed to be valid service of process upon the Sellers, and each of them, as appropriate, and any claim by any Buyer Indemnitee in respect to this Agreement may be asserted against, and settled with, Agent. Agent shall be deemed to have accepted the appointment herein upon Agent's execution of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Innotrac Corp)
Appointment of Agent. 9.1 The Purchaser (and others for whom the Purchaser is contracting for hereunder) hereby irrevocably authorizes the Agent:
(a) Each Lender hereby appoints GECC (together to complete and correct any information contained in this Agreement, and any other document prepared by the Purchaser in connection with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan PartyPrivate Placement, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.which may require completion or correction;
(b) Without limiting to negotiate, settle and amend the generality form of clause the Warrant Certificate and any other agreement entered into or to be entered into in connection with this transaction;
(c) to negotiate and waive, in whole or in part, or extend the time for compliance with, any of the Issuer's representations, warranties or covenants or closing conditions, given or made by the Issuer for the benefit of the Purchaser, including but not limited to those contained herein, in the Agency Agreement and any other agreement, instrument or document entered into by the Agent or the Purchaser in connection with this subscription or the Private Placement, all in such manner and on such terms and conditions as the Agent may determine, acting reasonably, without in any way affecting the Purchaser's obligations or the obligations of such others hereunder;
(d) to act as the Purchaser's representative at the closing of the Private Placement to, among other things, receive certificates representing the Securities subscribed for by the Purchaser, and to swear, execute and file any receipts or other required documentation on behalf of the Purchaser, and
(e) to terminate this Agreement on behalf of the Purchaser in the event that any condition precedent to the completion of the Private Placement has not been satisfied by the date set therefor.
9.2 Although the Agent may have introduced the Purchaser to the Issuer, the Purchaser acknowledges and agrees with, and for the benefit of, the Agent, such acknowledgments and agreements to survive Closing Date, that:
(a) abovethe Agent and its directors, Agent shall officers, employees, agents and representatives have no responsibility or liability of any nature whatsoever for the sole and exclusive right and authority (to the exclusion accuracy or adequacy of the Lenders)Disclosure Record, and or as to whether all information concerning the Issuer that is hereby authorized, required to be publicly disclosed by it has been generally disclosed;
(ib) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including Agent has not engaged in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders independent verification with respect to the Loan Parties and/or information contained in the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiverDisclosure Record; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.and
(c) Under the Loan DocumentsAgent is entitled to rely on the statements, Agent (i) is acting solely on behalf covenants and answers of the LendersPurchaser and the Issuer contained in this Agreement, with duties and that are entirely administrative in nature, notwithstanding the use Purchaser will hold harmless the Agent and the Issuer from any loss or damage they may suffer whatsoever as a result of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in Purchaser's failure to accurately complete any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not information required to assert any claim against Agent based on be completed by the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityPurchaser herein.
Appears in 1 contract
Appointment of Agent. 22.1 The Purchaser (and others for whom the Purchaser is contracting for hereunder) hereby irrevocably authorizes the Agent:
(a) Each Lender hereby appoints GECC (together to complete and correct any information contained in this Agreement, and any other document prepared by the Purchaser in connection with any successor Agent pursuant to Section 9.7) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan PartyPrivate Placement, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.which may require completion or correction;
(b) Without limiting to negotiate, settle and amend the generality form of clause the Warrant Certificate and any other agreement entered into or to be entered into in connection with this transaction;
(c) to negotiate and waive, in whole or in part, or extend the time for compliance with, any of the Issuer's representations, warranties or covenants or closing conditions, given or made by the Issuer for the benefit of the Purchaser, including but not limited to those contained herein, in the Agency Agreement and any other agreement, instrument or document entered into by the Agent or the Purchaser in connection with this subscription or the Private Placement, all in such manner and on such terms and conditions as the Agent may determine, acting reasonably, without in any way affecting the Purchaser's obligations or the obligations of such others hereunder;
(d) to act as the Purchaser's representative at the closing of the Private Placement to, among other things, receive certificates representing the Securities subscribed for by the Purchaser, and to swear, execute and file any receipts or other required documentation on behalf of the Purchaser, and
(e) to terminate this Agreement on behalf of the Purchaser in the event that any condition precedent to the completion of the Private Placement has not been satisfied by the date set therefor.
22.2 Although the Agent may have introduced the Purchaser to the Issuer, the Purchaser acknowledges and agrees with, and for the benefit of, the Agent, such acknowledgments and agreements to survive Closing Date, that:
(a) abovethe Agent and its directors, Agent shall officers, employees, agents and representatives have no responsibility or liability of any nature whatsoever for the sole and exclusive right and authority (to the exclusion accuracy or adequacy of the Lenders)Disclosure Record, and or as to whether all information concerning the Issuer that is hereby authorized, required to be publicly disclosed by it has been generally disclosed;
(ib) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including Agent has not engaged in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders independent verification with respect to the Loan Parties and/or information contained in the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiverDisclosure Record; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.and
(c) Under the Loan DocumentsAgent is entitled to rely on the statements, Agent (i) is acting solely on behalf covenants and answers of the LendersPurchaser and the Issuer contained in this Agreement, with duties and that are entirely administrative in nature, notwithstanding the use Purchaser will hold harmless the Agent and the Issuer from any loss or damage they may suffer whatsoever as a result of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in Purchaser's failure to accurately complete any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not information required to assert any claim against Agent based on be completed by the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityPurchaser herein.
Appears in 1 contract
Appointment of Agent. (a) Each Lender 2.1. The Merchant hereby appoints GECC the Agent, and the Agent hereby agrees to serve, as the Merchant’s exclusive agent for the purposes conducting the Sale in accordance with the terms and conditions of this Agreement.
2.2. The Merchant shall apply to the Bankruptcy Court for an order approving this Agreement and the APA in their entirety and the transactions contemplated therein (together with any successor Agent pursuant the “Sale Order”). The Sale Order shall provide, in a form reasonably satisfactory to Section 9.7) as Agent under the Loan Documents Merchant and authorizes Agent to Agent, inter alia, that (i) execute this Agreement and deliver the Loan Documents APA (and accept delivery thereof on its behalf from any Loan Party, each of the transactions contemplated thereby) are approved in their entirety; (ii) Merchant and Agent shall be authorized to continue to take such action on its behalf any and all actions as may be necessary or desirable to exercise all rights, powers implement this Agreement and remedies the APA and perform each of the duties as are expressly delegated to Agent under such Loan Documents and transactions contemplated thereby; (iii) exercise such powers as are reasonably incidental thereto.
Agent shall be entitled to sell all Merchandise hereunder free and clear of all liens, claims or encumbrances thereon, with any presently existing liens encumbering all or any portion of the Merchandise or the Proceeds attaching only to the Guaranteed Amount and other amounts to be received by Merchant under this Agreement; (biv) Without limiting the generality of clause (a) above, Agent shall have the sole right to use the Stores and exclusive right all related Store services, furniture, fixtures, equipment and authority (to the exclusion other assets of the Lenders), and is hereby authorized, to (i) act Merchant as the disbursing and collecting agent designated hereunder for the Lenders with respect purpose of conducting the Sale, free of any interference from any entity or person subject to all payments and collections arising in connection compliance with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, Sale Order; (v) take such other action Agent, as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent Merchant, is authorized to conduct, advertise, post signs and otherwise promote the Lenders for purposes Sale as a “going-out-of-business,” “store closing,” “bankruptcy,” or similarly themed sale (including, without limitation, by means of the perfection of all Liens with respect to the Collateralmedia advertising, including any Deposit Account maintained by a Loan Party withA-frame, interior and cash exterior banners and Cash Equivalents held by, such Lender, similar signage and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacity.sign
Appears in 1 contract
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.79.6) as Agent under the Loan Debt Documents and authorizes Agent to (ia) execute and deliver the Loan Debt Documents and accept delivery thereof on its behalf from any Loan PartyParties, (iib) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Debt Documents and (iiic) exercise such powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Agent and Lenders and none of Loan Parties nor any other person shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Debt Documents, Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Loan Party or any other person. Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the other Debt Documents. The duties of Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to have, by reason of this Agreement, any other Debt Document or otherwise a fiduciary or trustee relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Debt Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its affiliates in any capacity.
(b) Without limiting the generality of clause (aSection 9.1(a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Debt Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person person making any payment in connection with any Loan Debt Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any proceeding described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Debt Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Debt Documents, (vi) except as may be otherwise specified in any Loan Debt Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Debt Documents, applicable Requirements of Law law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Debt Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Party with, and cash and Cash Equivalents cash equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Debt Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person person (including any Lender). Any such Person person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, If Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (iincluding failure to act) is acting solely on behalf of the Lenders, in connection with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Debt Document, then Agent shall be entitled to refrain from such act or taking such action unless and (iii) until Agent shall have no implied functionsreceived instructions from Requisite Lenders or all affected Lenders, responsibilities, duties, obligations or other liabilities under any Loan Documentas the case may be, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not incur liability to any person by reason of so refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Debt Document (a) if such action would, in the opinion of Agent, be contrary to law or any Debt Document, (b) if such action would, in the opinion of Agent, expose Agent to any potential liability under any law, statute or regulation or (c) if Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any duty to discloseright of action whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under any other Debt Document in accordance with the instructions of Requisite Lenders or all affected Lenders, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityas applicable.
Appears in 1 contract
Appointment of Agent. 2.1 Merchant hereby appoints Agent, and Agent hereby agrees to serve, as Merchant’s exclusive agent for the limited purpose of conducting the Sale in accordance with the terms and conditions of this Agreement. Merchant’s and Agent’s obligations hereunder are subject to the approval of the Bankruptcy Court and shall be of no force and effect in the event that the Approval Order (as defined in Section 2.3 below) is not entered on or before the date set forth in Section 10(d) hereof.
2.2 Except for incurring Expenses in connection with the Sale and as otherwise specifically provided in this Agreement, Agent shall have no authority to enter into any contract, agreement or other arrangement or take any other action, by or on behalf of Merchant, that would have the effect of creating any obligation or liability, present or contingent, on behalf of or for the account of Merchant without Merchant’s prior written consent, which consent shall not be unreasonably withheld.
2.3 Merchant has or will file an expedited motion with the Bankruptcy Court for entry of an order approving this Agreement and authorizing Merchant and Agent to conduct the Sale in accordance with the terms hereof (the “Approval Order”). The Approval Order shall provide, in substantially the form of Exhibit 10 attached hereto and in any event in form reasonably satisfactory to the Merchant and Agent, among other things, that:
(a) Each Lender hereby appoints GECC the terms of this Agreement (together with any successor Agent pursuant to Section 9.7and each of the transactions contemplated hereby) as Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.approved;
(b) Without limiting Merchant and Agent shall be authorized to continue to take any and all actions as may be necessary or desirable to implement this Agreement and each of the generality transactions contemplated hereby, including, without limitation, the actions contemplated in Sections 8.9 and 8.10 of clause this Agreement;
(ac) aboveAgent shall be entitled to sell all Merchandise hereunder free and clear of all liens, claims and encumbrances thereon (collectively, “Liens”), with any presently existing Liens encumbering all or any portion of the Merchandise or the Proceeds attaching only to the Guaranteed Amount and other amounts to be received by Merchant under this Agreement;
(d) Agent shall have the sole right to use the Closing Stores and exclusive right all related store and authority distribution center services, furniture, fixtures, equipment and other assets of Merchant as designated hereunder for the purpose of conducting the Sale, free of any interference from any entity or person;
(e) Agent, as agent for Merchant, is authorized to conduct, advertise, post signs and otherwise promote the exclusion Sale without further consent of any person (other than Merchant as provided for herein), in accordance with the Lendersterms and conditions of this Agreement and the Sale Guidelines (as the same may be modified and approved by the Bankruptcy Court), and is hereby authorizedwithout further compliance with applicable federal, state or local laws governing, inter alia, the conduct of store closing sales, other than those designed to protect public health and safety (ithe “GOB Laws”);
(f) act as Agent shall be granted a limited license and right to use until the disbursing Sale Termination Date the trade names, logos and collecting agent for the Lenders with respect mailing lists relating to all payments and collections arising used in connection with the Loan Documents operation of the Closing Stores, solely for the purpose of advertising the Sale in accordance with the terms of the Agreement;
(including g) all newspapers and other advertising media in which the Sale is advertised shall be directed to accept the Approval Order as binding and to allow Merchant and Agent to consummate the transactions provided for in this Agreement, including, without limitation, the conducting and advertising of the Sale in the manner contemplated by this Agreement;
(h) all utilities, landlords, creditors and all persons acting for or on their behalf shall not interfere with or otherwise impede the conduct of the Sale, institute any action in any court (other bankruptcy, insolvency than in the Bankruptcy Court) or similar proceeding), and each Person making before any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation administrative body which in any bankruptcy, insolvency way directly or similar proceeding (but not to vote, consent indirectly interferes with or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes obstructs or impedes the conduct of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.Sale;
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding Bankruptcy Court shall retain jurisdiction over the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document parties to refer to Agent, which terms are used for title purposes only, enforce this Agreement;
(iij) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure any claims against the Merchant other than as expressly provided for in this Agreement, and Agent shall have no successorship liabilities whatsoever; and
(k) Agent shall have a valid, duly perfected first priority lien and security interest in the Merchandise and any Proceeds to disclosewhich Agent is entitled in accordance with the terms of this Agreement, which lien shall be subject and subordinate to the lien of Merchant’s secured lender(s) to the extent of any information relating unpaid portion of the Guaranteed Amount, the Recovery Amount (if any), the Augment Recovery Amount (to any Loan Party or any of its Subsidiaries that is communicated the extent greater than the Minimum Augment Recovery Amount), and Expenses due from Agent to or obtained by GECC or any of its Affiliates in any capacityMerchant under this Agreement.
Appears in 1 contract
Sources: Agency Agreement (Rowe Companies)
Appointment of Agent. For convenience of the Co-Lessees and in order to facilitate the administration of various actions required under this Lease Agreement, each of the Co-Lessees hereby designates Superior National Insurance Group, Inc. (the "Agent") as its agent in connection with the Lease Agreement, and grants the Agent an irrevocable power of attorney to take all actions and execute all such documents in the place and stead of each Co-Lessee as may now or hereinafter be necessary to carry out the duties of the Lessee hereunder; including
(a) Each Lender hereby appoints GECC the execution and delivery on behalf of the Co-Lessees of any and all Equipment Schedules, Riders, notices, consents and requests required or permitted to be given under this Lease Agreement (together b) the receipt on behalf of Co-Lessees of all notices required or permitted to be given to Lessee under this Lease Agreement, (c) the selection, inspection, and acceptance of any item of Equipment, (d) the negotiation, resolution and settlement of any disputes arising under this Lease Agreement and (e) the taking of all such actions and execution of all such documents as may be necessary or appropriate in connection with the exercise of any successor purchase or renewal option. Notwithstanding the foregoing, each Co-Lessee may act on its own behalf hereunder. Lessor shall nevertheless be entitled to rely on all acts taken by Agent pursuant with respect to Section 9.7) as Agent under the Loan Documents any Co-Lessee hereunder, and authorizes Agent to each Co-Lessee (i) execute and deliver agrees that Lessor or any assignee, lender or secured party shall be entitled to rely on such acts to the Loan Documents and accept delivery thereof on its behalf from any Loan Partysame extent if they were performed by such Co-Lessee, (ii) take such action on its behalf waives the right to require Lessor to (a) proceed against any other party, (b) proceed against or exhaust any security held from any other party, and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (c) pursue any other remedy in Lessor's power whatsoever; (iii) exercise such powers as are reasonably incidental thereto.
(b) Without limiting the generality of clause (a) abovewaives diligence, Agent shall have the sole demand, presentment, protest and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, notice; (iv) manageconsents to the alteration or release in any manner of any other obligor, supervise including without limitation the renewal, extension, acceleration, changes in time for payment, and otherwise deal with increases or decreases in any Monthly Rent, rate of interest or other amounts owing, all without in any way altering the Collateralliability of such Co-Lessee, and (v) take such waives any circumstances which might otherwise constitute a legal or equitable discharge of a surety or guarantor and, without limitation, any right of subrogation, contribution, indemnification, setoff or other action as is necessary recourse in respect of sums paid to Lessor by any other Co-Lessee." The terms and conditions of this Rider shall prevail where there may be conflicts or desirable to maintain inconsistencies with the perfection terms and priority conditions of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by AgentLease Agreement.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacity.
Appears in 1 contract
Sources: Master Lease Finance Agreement (Superior National Insurance Group Inc)
Appointment of Agent. (a) Each Lender By virtue of the approval of this Agreement and the Merger, and by the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, and without any further action of any of the Equityholders or the Company, the Equityholders hereby appoints GECC (together appoint Shareholder Representative Services LLC as the exclusive representative, agent and attorney-in-fact of the Equityholders to take all actions on behalf of the Equityholders in connection with any successor this Agreement and the agreements ancillary hereto. All such actions shall be deemed to be facts ascertainable outside this Agreement and shall be binding on the Equityholders and their successors as if expressly confirmed and ratified in writing by the Equityholders, and all defenses which may be available to the Equityholders to contest, negate, or disaffirm the action of Agent pursuant to Section 9.7) as taken in good faith under this Agreement, the Escrow Agreement or Agent under the Loan Documents and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as Engagement Agreement are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.
(b) waived. Without limiting the generality of clause (a) aboveforegoing, Agent shall have the sole authority:
(a) to consummate the Transaction and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising pay such Equityholders’ expenses incurred in connection with the Loan Documents negotiation and performance of this Agreement (whether incurred prior to, on or after the Agreement Date);
(b) to give and receive notices and communications;
(c) to authorize or object to delivery to Purchaser of cash from the Escrow Fund and to effect the distribution of any funds payable by Purchaser under this Agreement that are for the benefit of Equityholders which are released from the Escrow Fund or otherwise payable for the benefit of the Equityholders pursuant to the provisions of this Agreement;
(d) to deduct and/or hold back any funds that may be payable to any Equityholder pursuant to the terms of this Agreement and the Escrow Agreement in order to pay any amount that may be payable by such Equityholder hereunder, in each case on a basis consistent with their Percentage;
(e) to make any determinations, agree to, negotiate, enter into settlements and compromises of, any matters contemplated by this Agreement, including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with the determination or the adjustment of, or any Loan Document other matter pertaining to, the Merger Consideration;
(f) to any Lender is hereby authorized to make such payment to Agent, (ii) file execute and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act deliver on behalf of such Lender)Equityholder any amendment or waiver to the terms of this Agreement;
(g) to disburse funds to third parties for expenses and liabilities;
(h) to engage, employ and obtain the advice of legal counsel, accountants and other professional advisors and rely on their advice and counsel, and to incur and pay fees and expenses of such advisors;
(iiii) act as collateral agent to take all actions necessary or appropriate in the judgment of Agent for Agent and each Lender for purposes the accomplishment of the perfection of all Liens created foregoing or permitted by the Loan Documents terms of this Agreement, the Escrow Agreement or Agent Engagement Agreement; and
(j) to do each and every act and exercise any and all other purposes stated thereinrights which such Equityholder, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority any or all of the Liens created Equityholders collectively, are permitted or purported required to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate do or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from under this Article 9 to the extent provided by AgentAgreement.
(c) Under the Loan Documents, Agent (i) is acting solely coupled with an interest and will be irrevocable and will not be terminated by any Equityholder or by operation of Law, whether by the death, incompetence, bankruptcy, liquidation or incapacity of any Equityholder or the occurrence of any other event, and any action taken by Agent will be as valid as if such death, incompetence, bankruptcy, liquidation, incapacity or other event had not occurred, regardless of whether or not any Equityholder or Agent will have received any notice thereof and shall be binding on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” any successor thereto and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming shall survive the delivery of an assignment by any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits Equityholder of the Loan Documentswhole or fraction of his, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth her or its interest in the Loan DocumentsEscrow Fund. A new Agent may be designated by the Equityholders receiving at Closing a majority in interest of the proceeds paid to the Equityholders at Closing in their capacities as Equityholders pursuant to the Transaction, upon not less than ten days’ prior written notice to Purchaser. No bond shall be required of Agent. After the Closing, notices or communications to or from Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated constitute notice to or obtained by GECC or from each of the Equityholders. Agent may resign at any time in accordance with the terms of its Affiliates in any capacitythe Agent Engagement Agreement.
Appears in 1 contract
Appointment of Agent. Solicitation by the Agent of Offers to Purchase; Sales of Notes to a Purchaser.
(a) Each Lender Subject to the terms and conditions set forth herein, the Company hereby appoints GECC the Agents to act as its agents for the purpose of soliciting offers to purchase all or part of the Notes from the Company upon the terms set forth in the Prospectus, as amended or supplemented from time to time, and in the Procedures. The Company shall have the right to appoint additional persons to act as its agents for such purposes upon three days prior notice to the Agents then acting hereunder so long as any such additional persons become parties to this Agreement upon the same terms and conditions as shall then be applicable to such Agents. So long as this Agreement shall remain in effect with respect to any Agents, the Company shall not, without the consent of such Agents, solicit offers to purchase Notes otherwise than through one of such Agents, except as contemplated by Section 1(g) hereof and except that nothing contained herein shall be construed to prevent the Company from selling Notes at any time (together with any successor Agent x) in a firm commitment underwriting pursuant to Section 9.7an underwriting agreement which does not provide for a continuous offering of such Notes or (y) as Agent under directly to investors other than the Loan Documents Purchasers, and authorizes Agent no commission shall be payable to (i) execute the Agents with respect to any such sales. The Company also reserves the right to sell Notes through agents other than pursuant to this Agreement where offers to purchase are received through such agents on an unsolicited basis. Settlement of such sales will be on substantially the same terms and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties conditions as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental theretocontained herein, including commissions.
(b) Without limiting On the generality basis of clause (a) abovethe representations and warranties set forth herein, Agent shall have the sole and exclusive right and authority (but subject to the exclusion terms and conditions set forth herein, each Agent agrees to use its reasonable efforts, as agent of the Lenders)Company, to solicit offers to purchase Notes from the Company upon the terms set forth in the Prospectus, as amended or supplemented from time to time, and is hereby authorizedin the Procedures. Subject to the provisions of Section 1(c) and to the Procedures, to (i) act as the disbursing and collecting agent offers for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims purchase of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as Notes may be otherwise specified solicited at such times and in any Loan Document, exercise all remedies given such amounts as each Agent may from time to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agenttime deem advisable.
(c) Under The Company reserves the Loan Documentsright, in its sole discretion, to suspend solicitation of offers to purchase Notes from the Company at any time for any period of time or permanently. Upon receipt of at least one business day's prior notice from the Company, the Agents forthwith will suspend their solicitation of offers to purchase Notes from the Company until such time as the Company has advised the Agents that such solicitation may be resumed.
(d) Each Agent (i) will communicate to the Company, orally or in writing, each offer to purchase Notes from the Company that is acting solely on behalf received by such Agent as agent of the LendersCompany and that is not rejected by such Agent as provided below. The Company will have the sole right to accept offers to purchase Notes from the Company and may reject any such offer, in whole or in part, for any reason. Each Agent may, without notice to the Company, in its discretion reasonably exercised, reject any offer to purchase Notes from the Company that is received by such Agent, in whole or in part, and any such rejection shall not be deemed a breach of such Agent's agreements contained herein.
(e) The Company agrees to pay each Agent a commission, on the Closing Date with respect to each sale of Notes by the Company as a result of a solicitation made by such Agent, in an amount equal to that percentage specified in Schedule I hereto of the aggregate principal amount of each Note sold by the Company. Such commission shall be payable as specified in the Procedures. The commission rates may be amended from time to time by written agreement of the Company and the Agents. The Terms Agreement may specify any concessions allowed or reallowed or paid to dealers.
(f) Each of you agrees, with duties that are entirely administrative respect to any Note denominated in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document a currency other than as expressly set forth therein or any role U.S. dollars, as agent, fiduciary directly or trustee of or for any Lender or any other Person indirectly, not to solicit offers to purchase, and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities as principal under any Loan DocumentTerms Agreement or otherwise, directly or indirectly, not to offer, sell or deliver, such Note in, or to residents of, the country issuing such currency (or, if such Note is denominated in a composite currency, in any country issuing a currency comprising a portion of such composite currency), except as permitted by applicable law.
(g) Subject to the terms and conditions stated herein, whenever the Company and you determine that the Company shall sell Notes directly to any or all of you acting as principal (the "Purchaser"), each such sale of Notes shall be made in accordance with the terms of this Agreement and any supplemental agreement relating thereto between the Company and the Purchaser. Each such supplemental agreement (which shall be in the form of Annex B or such other form as may be agreed upon by the Company and the Purchaser) is herein referred to as a "Terms Agreement". The Purchaser's commitment to purchase Notes pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall describe the Notes to be purchased by the Purchaser pursuant thereto, specify the maturity and principal amount of such Notes, the price to be paid to the Company for such Notes, the rate at which interest will be paid on the Notes, the Closing Date for such Notes, the place of delivery of the Notes and payment therefor, the method of payment and any modification of the requirements for the delivery of the opinions of counsel, the certificates from the Company or its officers, and each Lenderthe letter from the Company's independent public accountants, by accepting pursuant to Section 7(c). Such Terms Agreement shall also specify the benefits period of time referred to in Section 5(l). The Terms Agreement may specify the terms upon which any Agent may resell any Notes to other dealers. Delivery of the Loan Documentscertificates, hereby waives if the Notes are certificated, or entry into the books of the Depository Trust Company, if the Notes are book-entry Notes, for Notes sold to the Purchaser pursuant to any Terms Agreement shall be made as agreed to between the Company and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except Purchaser as expressly set forth in the Loan Documentsrespective Terms Agreement, Agent shall not have any duty later than the Closing Date set forth in such Terms Agreement, against payment of funds to disclose, the Company in the amount due to the Company for such Notes by the method and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacitythe form set forth in the respective Terms Agreement.
Appears in 1 contract
Sources: Distribution Agreement (Ashland Inc)
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.79.9) as Agent under the Loan Debt Documents and authorizes the Agent to (ia) execute and deliver the Loan Debt Documents and accept delivery thereof on its behalf from any Loan PartyParties, (iib) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to the Agent under such Loan Debt Documents and (iiic) exercise such powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Agent and Lenders and none of Loan Parties nor any other person shall have any rights as a third party beneficiary of any of the provisions hereof In performing its functions and duties under this Agreement and the other Debt Documents, Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Loan Party or any other person. Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the other Debt Documents. The duties of Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to have, by reason of this Agreement, any other Debt Document or otherwise a fiduciary or trustee relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Debt Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its affiliates in any capacity.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Debt Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person person making any payment in connection with any Loan Debt Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any proceeding described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens liens created by the Loan Debt Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens liens created or purported to be created by the Loan Debt Documents, (vi) except as may be otherwise specified in any Loan Debt Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Debt Documents, applicable Requirements of Law law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Debt Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Party with, and cash and Cash Equivalents cash equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Debt Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person person (including any Lender). Any such Person person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, If Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (iincluding failure to act) is acting solely on behalf of the Lenders, in connection with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Debt Document, then Agent shall be entitled to refrain from such act or taking such action unless and (iii) until Agent shall have no implied functionsreceived instructions from Requisite Lenders or all affected Lenders, responsibilities, duties, obligations or other liabilities under any Loan Documentas the case may be, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not incur liability to any person by reason of so refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Debt Document (a) if such action would, in the opinion of Agent, be contrary to law or any Debt Document, (b) if such action would, in the opinion of Agent, expose Agent to any potential liability under any law, statute or regulation or (c) if Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any duty to discloseright of action whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under any other Debt Document in accordance with the instructions of Requisite Lenders or all affected Lenders, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityas applicable.
Appears in 1 contract
Appointment of Agent. (a) 15.01 Each Lender of the Holders hereby irrevocably appoints GECC (together with any successor the Agent pursuant to Section 9.7) as Agent its agent hereunder and under the Loan Documents other Mezzanine Transaction Documents, and authorizes the Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party, (ii) take such action actions on its behalf and to exercise all rights, such powers and remedies and perform the duties as are expressly delegated to the Agent under by the terms hereof or thereof, together with such Loan Documents actions and (iii) exercise such powers as are reasonably incidental thereto.
(b) 15.02 The Person serving as the Agent hereunder shall have the same rights and powers in its capacity as a Holder as any other Holder and may exercise the same as though it were not the Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder.
15.03 The Agent shall not have any duties or obligations except those expressly set forth herein and in the other Mezzanine Transaction Documents. Without limiting the generality of clause the foregoing, (a) above, the Agent shall have the sole and exclusive right and authority (not be subject to the exclusion any fiduciary or other implied duties, regardless of the Lenders), whether a Default has occurred and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agentcontinuing, (iib) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to shall not have any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders duty to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate discretionary action or exercise any of its rightsdiscretionary powers, except discretionary rights and powers and remedies underexpressly contemplated hereby or by the other Mezzanine Transaction Documents that the Agent is required to exercise in writing by the Required Holders, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than except as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any herein and in the other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Mezzanine Transaction Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party Holdings, the Borrower or any of its Subsidiaries that is communicated to or obtained by GECC the Agent or any of its Affiliates in any capacity. 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 Holders or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until notice thereof is given to the Agent by the Borrower or a Holder, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (v) any statement, warranty or representation made in or in connection with this Agreement or any other Mezzanine Transaction Document, (w) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (x) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (y) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Mezzanine Transaction Document or any other agreement, instrument or document, or (z) the satisfaction of any condition set forth herein or therein, other than to confirm receipt of items expressly required to be delivered to the Agent.
15.04 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. 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. The Agent may consult with legal counsel (who may be counsel for a Credit Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
15.05 The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Affiliates of the 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.
15.06 Subject to the appointment and acceptance of a successor Agent as provided below, the Agent may resign at any time by notifying the Holders and the Borrower. Upon any such resignation, the Required Holders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Holders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, upon not less than ten days' notice, on behalf of the Holders, appoint a successor Agent. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. 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 the Agent's resignation hereunder, the provisions of this Article 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.
15.07 Each Holder acknowledges that it has, independently and without reliance upon the Agent or any other Holder and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Holder also acknowledges that it will, independently and without reliance upon the Agent or any other Holder and based on such documents and information as it shall 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 Mezzanine Transaction Document or any related agreement or any document furnished hereunder or thereunder.
15.08 Subject to section 14.04, the Agent may take any action on behalf of the Required Holders that has been approved by the Required Holders. For the avoidance of doubt and subject to section 14.04, the Agent may, with the prior consent of the Required Holders (but not otherwise), consent to any amendment, restatement, supplement, waiver or other modification under any of the Mezzanine Transaction Documents.
Appears in 1 contract
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.79.9) as Agent under the Loan Debt Documents and authorizes the Agent to (ia) execute and deliver the Loan Debt Documents and accept delivery thereof on its behalf from any Loan PartyParties, (iib) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to the Agent under such Loan Debt Documents and (iiic) exercise such powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Agent and Lenders and none of Loan Parties nor any other person shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Debt Documents, Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Loan Party or any other person. Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the other Debt Documents. The duties of Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to have, by reason of this Agreement, any other Debt Document or otherwise a fiduciary or trustee relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Debt Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its affiliates in any capacity.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Debt Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person person making any payment in connection with any Loan Debt Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any proceeding described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Debt Documents and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Debt Documents, (vi) except as may be otherwise specified in any Loan Debt Document, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Debt Documents, applicable Requirements of Law law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Debt Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Party with, and cash and Cash Equivalents cash equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Debt Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person person (including any Lender). Any such Person person shall benefit from this Article 9 to the extent provided by Agent. For the avoidance of doubt, Agent hereby acknowledges and agrees that, with respect to the UCC Financing Statements numbered 11540256, 32447855, 32823626, 40960056, 41365453, 42812172, 60048330, 11540264 and 0156611, each naming Borrower as debtor and previously filed by General Electric Capital Corporation in the office of the Secretary of State of the State of Delaware, such UCC Financing Statements are maintained by General Electric Capital Corporation in its capacity as Agent for the perfection of the Liens granted to Agent, for the benefit of itself and Lenders, under this Agreement.
(c) Under the Loan Documents, If Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (iincluding failure to act) is acting solely on behalf of the Lenders, in connection with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Debt Document, then Agent shall be entitled to refrain from such act or taking such action unless and (iii) until Agent shall have no implied functionsreceived instructions from Requisite Lenders or all affected Lenders, responsibilities, duties, obligations or other liabilities under any Loan Documentas the case may be, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not incur liability to any person by reason of so refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Debt Document (a) if such action would, in the opinion of Agent, be contrary to law or any Debt Document, (b) if such action would, in the opinion of Agent, expose Agent to any potential liability under any law, statute or regulation or (c) if Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any duty to discloseright of action whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under any other Debt Document in accordance with the instructions of Requisite Lenders or all affected Lenders, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityas applicable.
Appears in 1 contract
Sources: Loan and Security Agreement (Cytori Therapeutics, Inc.)
Appointment of Agent. (a) Each Lender and each Letter of Credit Issuer hereby irrevocably appoints GECC (together with any successor Agent pursuant JPMCB and its successors and assigns to Section 9.7) serve as Agent the administrative agent and collateral agent under the Loan Documents and each Lender and each Letter of Credit Issuer authorizes the Agent to (i) take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender and each Letter of Credit Issuer hereby authorizes the Agent to execute and deliver deliver, and to perform its obligations under, each of the Loan Documents and accept delivery thereof on its behalf from any Loan Partyto which the Agent is a party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform that the duties as are expressly delegated to Agent may have under such Loan Documents and (iii) exercise such powers as are reasonably incidental theretoDocuments.
(b) Without limiting As to any matters not expressly provided for herein and in the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the other Loan Documents (including in any other bankruptcy, insolvency enforcement or similar proceedingcollection), the Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and each Person making any payment shall be fully protected in connection with any Loan Document to any Lender is hereby authorized to make such payment to Agent, (iiso acting or refraining from acting) file and prove claims and file other documents necessary or desirable to allow upon the claims of Agent and Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes written instructions of the perfection of all Liens created by the Loan Documents and all other purposes stated therein, Required Lenders (iv) manage, supervise and otherwise deal with the Collateral, (v) take or such other action as is necessary number or desirable to maintain the perfection and priority percentage of the Liens created or purported Lenders as shall be necessary, pursuant to be created by the terms in the Loan Documents), (vi) except as may and, unless and until revoked in writing, such instructions shall be otherwise specified in any Loan Document, exercise all remedies given to Agent binding upon each Lender and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Documents, applicable Requirements each Letter of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiverCredit Issuer; provided, however, that the Agent hereby appoints, authorizes shall not be required to take any action that (i) the Agent in good faith believes exposes it to liability unless the Agent receives an indemnification and directs each Lender is exculpated in a manner satisfactory to act as collateral sub-agent for Agent it from the Lenders and the Lenders for purposes Letter of the perfection of all Liens Credit Issuers with respect to the Collateral, including any Deposit Account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens action or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, Agent (i) is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender contrary to this Agreement or any other Person and (iii) shall have no implied functionsLoan Document or applicable law, responsibilities, duties, obligations or other liabilities including any action that may be in violation of the automatic stay under any Loan Documentrequirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) abovemay refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party Borrower, any Subsidiary or any Affiliate of its Subsidiaries any of the foregoing that is communicated to or obtained by GECC the Person serving as Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(c) In performing its functions and duties hereunder and under the other Loan Documents, the Agent is acting solely on behalf of the Lenders and the Letter of Credit Issuers (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. Without limiting the generality of the foregoing:
(i) the Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender, Letter of Credit Issuer or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Agent is not intended to connote any fiduciary duty 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); additionally, each ▇▇▇▇▇▇ agrees that it will not assert any claim against the Agent based on an alleged breach of fiduciary duty by the Agent in connection with this Agreement and/or the transactions contemplated hereby; and
(ii) nothing in this Agreement or any Loan Document shall require the Agent to account to any Lender for any sum or the profit element of any sum received by the Agent for its own account.
(d) The Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent, and shall apply to their respective activities pursuant to this Agreement. The Agent shall not 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 the Agent acted with gross negligence or willful misconduct in the selection of such sub-agent.
(e) None of any Syndication Agent, any Documentation Agent or any Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder.
(f) 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 Agent (irrespective of whether the principal of any Loan or any reimbursement obligation in respect of a Letter of Credit shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Agent shall have made any demand on the Borrowers) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, disbursements in respect of Letters of Credit and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Letter of Credit Issuers and the Agent allowed in such judicial proceeding; and
(ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, each Letter of Credit and each other Secured Party to make such payments to the Agent and, in the event that the Agent shall consent to the making of such payments directly to the Lenders, the Letter of Credit Issuers or the other Secured Parties, to pay to the Agent any amount due to it, in its capacity as the Agent, under the Loan Documents. Nothing contained herein shall be deemed to authorize the Agent to authorize or consent to or accept or adopt on behalf of any Lender or Letter of Credit Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or Letter of Credit Issuer or to authorize the Agent to vote in respect of the claim of any Lender or Letter of Credit Issuer in any such proceeding.
(g) The provisions of this Article are solely for the benefit of the Agent, the Lenders and the Letter of Credit Issuers, and, except solely to the extent of the Borrowers’ rights to consent pursuant to and subject to the conditions set forth in this Article, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the provisions of this Article.
Appears in 1 contract
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.79.9) as Agent under the Loan Debt Documents and authorizes the Agent to (ia) execute and deliver the Loan Debt Documents and accept delivery thereof on its behalf from any Loan PartyParties, (iib) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to the Agent under such Loan Debt Documents and (iiic) exercise such powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Agent and Lenders and none of Loan Parties nor any other person shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Debt Documents, Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Loan Party or any other person. Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the other Debt Documents. The duties of Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to have, by reason of this Agreement, any other Debt Document or otherwise a fiduciary or trustee relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Debt Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its affiliates in any capacity.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Debt Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person person making any payment in connection with any Loan Debt Document to any Lender is hereby authorized to make such payment to Agent, (ii) subject to Section 8.2 hereof, file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any proceeding described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens liens created by the Loan Debt Documents and all other purposes stated therein, (iv) subject to Section 8.2 hereof, manage, supervise and otherwise deal with the Collateral, other than any release of a security interest in the Collateral requiring the consent of Requisite Lenders or all Lenders under Sections 10.8(b) or 10.8(c) (provided that Agent may so release such security interest if such consent is obtained), (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens liens created or purported to be created by the Loan Debt Documents, (vi) except as may be otherwise specified in any Loan DocumentDebt Document (including where the consent or approval of all Lenders or the Requisite Lenders is required by the terms thereof) and subject to Sections 8.2 and 10.8 hereof, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Debt Documents, applicable Requirements of Law law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Debt Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Party with, and cash and Cash Equivalents cash equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Debt Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person person (including any Lender). Any such Person person shall benefit from this Article 9 to the extent provided by Agent.
(c) Under the Loan Documents, If Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (iincluding failure to act) is acting solely on behalf of the Lenders, in connection with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Debt Document, then Agent shall be entitled to refrain from such act or taking such action unless and (iii) until Agent shall have no implied functionsreceived instructions from Requisite Lenders or all affected Lenders, responsibilities, duties, obligations or other liabilities under any Loan Documentas the case may be, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not incur liability to any person by reason of so refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Debt Document (a) if such action would, in the opinion of Agent, be contrary to law or any Debt Document, (b) if such action would, in the opinion of Agent, expose Agent to any potential liability under any law, statute or regulation or (c) if Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any duty to discloseright of action whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under any other Debt Document in accordance with the instructions of Requisite Lenders or all affected Lenders, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityas applicable.
Appears in 1 contract
Appointment of Agent. (a) Each Lender hereby appoints GECC (together with any successor Agent pursuant to Section 9.79.9) as Agent under the Loan Debt Documents and authorizes the Agent to (ia) execute and deliver the Loan Debt Documents and accept delivery thereof on its behalf from any Loan PartyParties, (iib) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to the Agent under such Loan Debt Documents and (iiic) exercise such powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Agent and Lenders and none of Loan Parties nor any other person shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Debt Documents, Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Loan Party or any other person. Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the other Debt Documents. The duties of Agent shall be mechanical and administrative in nature and Agent shall not have, or be deemed to have, by reason of this Agreement, any other Debt Document or otherwise a fiduciary or trustee relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Debt Documents, Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to Borrower or any of its Subsidiaries that is communicated to or obtained by GECC or any of its affiliates in any capacity.
(b) Without limiting the generality of clause (a) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Debt Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person person making any payment in connection with any Loan Debt Document to any Lender is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of Agent and Lenders with respect to any Obligation in any proceeding described in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) act as collateral agent for Agent and each Lender for purposes of the perfection of all Liens created by the Loan Debt Documents and all other purposes stated therein, (iv) subject to Section 8.2 hereof, manage, supervise and otherwise deal with the Collateral, other than any release or subordination of a security interest in the Collateral requiring the consent of Requisite Lenders or all Lenders under Sections 10.8(b) or 10.8(c) (provided that Agent may so release or subordinate such security interest if such consent is obtained), (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Debt Documents, (vi) except as may be otherwise specified in any Loan Debt Document, and subject to Sections 8.2 and 10.8 hereof, exercise all remedies given to Agent and the other Lenders with respect to the Loan Parties and/or the Collateral, whether under the Loan Debt Documents, applicable Requirements of Law law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Debt Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any Deposit Account deposit account maintained by a Loan Party with, and cash and Cash Equivalents cash equivalents held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Debt Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person person (including any Lender). Any such Person person shall benefit from this Article 9 to the extent provided by Agent. For the avoidance of doubt, Agent hereby acknowledges and agrees that, with respect to the UCC Financing Statements numbered 11540256, 32447855, 32823626, 40960056, 41365453, 42812172, 60048330, 11540264 and 0156611, each naming Borrower as debtor and previously filed by General Electric Capital Corporation in the office of the Secretary of State of the State of Delaware, such UCC Financing Statements are maintained by General Electric Capital Corporation in its capacity as Agent for the perfection of the Liens granted to Agent, for the benefit of itself and Lenders, under this Agreement.
(c) Under the Loan Documents, If Agent shall request instructions from Requisite Lenders or all affected Lenders with respect to any act or action (iincluding failure to act) is acting solely on behalf of the Lenders, in connection with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender this Agreement or any other Person Debt Document, then Agent shall be entitled to refrain from such act or taking such action unless and (iii) until Agent shall have no implied functionsreceived instructions from Requisite Lenders or all affected Lenders, responsibilities, duties, obligations or other liabilities under any Loan Documentas the case may be, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Loan Documents, Agent shall not incur liability to any person by reason of so refraining. Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Debt Document (a) if such action would, in the opinion of Agent, be contrary to law or any Debt Document, (b) if such action would, in the opinion of Agent, expose Agent to any potential liability under any law, statute or regulation or (c) if Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any duty to discloseright of action whatsoever against Agent as a result of Agent acting or refraining from acting hereunder or under any other Debt Document in accordance with the instructions of Requisite Lenders or all affected Lenders, and shall not be liable for failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by GECC or any of its Affiliates in any capacityas applicable.
Appears in 1 contract
Sources: Loan and Security Agreement (Cytori Therapeutics, Inc.)