The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 2 contracts
Samples: Borrowing Subsidiary Agreement (Albany International Corp /De/), Credit Facility Agreement (Albany International Corp /De/)
The Agents. In order to expedite Each Lender hereby irrevocably designates and appoints the transactions contemplated by Agents as the agents of such Person under this AgreementAgreement and the other Loan Documents, JPMCB is hereby appointed to act as Administrative and each such Person irrevocably authorizes each Agent, and JPMEL is hereby appointed to act as London Agentin such capacity, on behalf of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions action on its behalf under the provisions of such Lender or assignee or such Issuing Bank this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Agents such Agent by the terms of this Agreement and the other Loan Documents, together with such actions and other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or on behalf of Borrower or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative such Agent. Without limiting the generality None of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release Agents nor any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor their Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not omitted to be taken by it with any of them except to the consent extent finally judicially determined to have resulted from its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or such other proportion of the Lenders as may be expressly required hereby) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Agent also may rely upon None of the Agents nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel. The Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the Requisite Lenders (or such other proportion of the Lenders as may be expressly required hereby). The Collateral Agent hereby agrees that it holds and will hold all of its right, accountants title and interest in, to and under the Security Documents and the Collateral granted to the Collateral Agent thereunder whether now existing or expertshereafter arising (all such right, title and interest being hereinafter referred to as the “Collateral Estate”) under and subject to the conditions set forth in this Agreement; and the Collateral Agent further agrees that it will hold such Collateral Estate for the benefit of the Secured Parties, for the enforcement of the payment of all Secured Obligations (subject to the limitations and priorities set forth herein and in the respective Security Documents) and as security for the performance of and compliance with the covenants and conditions of this Agreement and each of the Security Documents. Each All of the powers, remedies and rights of the Collateral Agent as set forth in this Agreement may perform be exercised by the Collateral Agent in respect of any Security Document as though set forth in full therein and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent powers, remedies and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication rights of the revolving credit facility provided for Collateral Agent as set forth in any Security Document may be exercised from time to time as herein as well as activities as Agentand therein provided. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow and subject to the next succeeding paragraph with respect to the Collateral Agent, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right, in consultation with the Company, right to appoint a successor, subject (so long as no Default or Event of Default is continuing) to Borrower’s approval (not to be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Requisite Lenders and approved by Borrower and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank or financial institution with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bankbank or financial institution. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's ’s resignation hereunder, the provisions of this Article Section 8.01 and Section 10.03 9.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. The Collateral Agent may resign upon 30 days’ notice to the Lenders and Borrower. If the Collateral Agent shall resign as the Collateral Agent under this Agreement and the other Loan Documents, then the Requisite Lenders shall appoint from among the Lenders a successor agent for the Lenders, whereupon such successor agent shall succeed to the rights, powers and duties of the Collateral Agent, and the term “Collateral Agent” means such successor agent effective upon such appointment and approval, and such former Collateral Agent’s rights, powers and duties as the Collateral Agent shall be terminated, without any other or further act or deed on the part of such former Collateral Agent or any of the parties to this Agreement or any holders of the Loans. If no successor agent has accepted appointment as the Collateral Agent by the date that is 30 days following a retiring Collateral Agent’s notice of resignation, the retiring Collateral Agent shall, in consultation with Borrower, appoint a successor Collateral Agent (which successor agent shall be a financial institution of nationally-recognized standing that, in the ordinary course of business, performs functions equivalent to those of the Collateral Agent hereunder), and the retiring Collateral Agent’s resignation shall become effective upon such appointment. After any retiring Collateral Agent’s resignation as the Collateral Agent, the provisions of this Section 8.01 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Agreement and the other Loan Documents. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdco, Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder.. Notwithstanding anything herein to the contrary, each Lender also acknowledges that the Lien and security interest granted to the Collateral Agent pursuant to the Security Documents and the exercise of any right or remedy by the Collateral Agent thereunder are subject to the provisions of the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement and the Security Documents, the terms of the Intercreditor Agreement shall govern and control. The Collateral Agent is authorized to execute and deliver the Intercreditor Agreement and each Lender by making or purchasing an interest in any Loan at any time shall be deemed to have agreed to be bound by the terms and conditions of such agreement. The Lenders and the Issuing Bank irrevocably authorize and instruct the Administrative Agent and the Collateral Agent (and the Administrative Agent and the Collateral Agent are authorized to and hereby agree):
Appears in 2 contracts
Samples: Security Agreement (Emdeon Inc.), First Lien Security Agreement (Emdeon Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Each bank serving as an Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the any Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the Loan other Credit Documents. Without limiting the generality of the foregoing, (a) no the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Loan other Credit Documents that the Administrative Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of or, if so specified by this Agreement, all the Lenders as shall be necessary under the circumstances as provided in Section 10.02), Lenders) and (c) except as expressly set forth herein and in the Loan other Credit Documents, no the Administrative Agent shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the any Company or any of its Subsidiaries Affiliates that is communicated to or obtained by the institution bank serving as Administrative Agent or any of its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, if so specified by this Agreement, all the Lenders, or such other number or percentage of as the Lenders as Administrative Agent shall believe in good faith shall be necessary necessary, under the circumstances as provided in Article VII and Section 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Company Borrower or a Lender, and no the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any Loan other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder under any Credit Document or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein in the Credit Documents or thereinthe occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 2 contracts
Samples: Credit Agreement (Time Warner Inc), Credit Agreement (Time Warner Inc)
The Agents. In order to expedite Each Lender hereby irrevocably designates and appoints the transactions contemplated by Agents as the agents of such Person under this AgreementAgreement and the other Loan Documents, JPMCB is hereby appointed to act as Administrative and each such Person irrevocably authorizes each Agent, and JPMEL is hereby appointed to act as London Agentin such capacity, on behalf of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions action on its behalf under the provisions of such Lender or assignee or such Issuing Bank this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Agents such Agent by the terms of this Agreement and the other Loan Documents, together with such actions and other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or on behalf of Borrower or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative such Agent. Without limiting the generality None of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release Agents nor any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor their Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not omitted to be taken by it with any of them except to the consent extent finally judicially determined to have resulted from its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or such other proportion of the Lenders as may be expressly required hereby) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Agent also may rely upon None of the Agents nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel. The Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the Requisite Lenders (or such other proportion of the Lenders as may be expressly required hereby). The Collateral Agent hereby agrees that it holds and will hold all of its right, accountants title and interest in, to and under the Security Documents and the Collateral granted to the Collateral Agent thereunder whether now existing or expertshereafter arising (all such right, title and interest being hereinafter referred to as the “Collateral Estate”) under and subject to the conditions set forth in this Agreement; and the Collateral Agent further agrees that it will hold such Collateral Estate for the benefit of the Secured Parties, for the enforcement of the payment of all Secured Obligations (subject to the limitations and priorities set forth herein and in the respective Security Documents) and as security for the performance of and compliance with the covenants and conditions of this Agreement and each of the Security Documents. Each All of the powers, remedies and rights of the Collateral Agent as set forth in this Agreement may perform be exercised by the Collateral Agent in respect of any Security Document as though set forth in full therein and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent powers, remedies and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication rights of the revolving credit facility provided for Collateral Agent as set forth in any Security Document may be exercised from time to time as herein as well as activities as Agentand therein provided. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow and subject to the next succeeding paragraph with respect to the Collateral Agent, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right, in consultation with the Company, right to appoint a successor, subject (so long as no Default or Event of Default is continuing) to Borrower’s approval (not to be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Requisite Lenders and approved by Borrower and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be a bank or financial institution with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bankbank or financial institution. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's ’s resignation hereunder, the provisions of this Article Section 8.01 and Section 10.03 9.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 2 contracts
Samples: Security Agreement (Emdeon Inc.), Security Agreement (Emdeon Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Canadian Administrative Agent on behalf of the Lenders and each the Issuing BankBanks. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Canadian Administrative Agent are hereby expressly authorized by the Lenders and each the Issuing BankBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders and the Issuing Banks hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations hereunder and under the other Loan Documents, Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not other than the Company or an Affiliate of the Company in a transaction permitted not prohibited by Section 6.03this Agreement. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent and the Canadian Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. With respect to any the Loans made by it hereunderunder this Agreement, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent under the Loan Documents and without any duty to account therefor to the Lenders. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents, and their duties under the Loan Documents shall be administrative in nature. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary expressly provided for herein or in the other Loan Documents); provided that such Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under the circumstances as provided any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in Section 10.02)violation of any Debtor Relief Law, and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence negligence, bad faith or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a LenderBorrower, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereintherein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and in good faith believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, each Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless such Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for the Companyany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs this Article shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Agent. In taking any discretionary action hereunder, or in determining whether any provision hereof is applicable to any event, transaction or circumstance, the Administrative Agent may, in its discretion, but shall not be required (unless required by any other express provision hereof) to, communicate such proposed action or determination to the Lenders prior to taking or making the same, and shall be entitled (subject to any otherwise applicable requirement of Section 10.02(b)), in the absence of any contrary communication received from any Lender within a reasonable period of time specified in such communication from the Administrative Agent, to assume that such proposed action or determination is satisfactory to such Lender. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Company shall have the right, with the consent of the Required Lenders (not to be unreasonably withheld or delayed), to appoint a successor; provided, that if a Default has occurred and is continuing, the Required Lenders, and not the Company, shall have the right, in consultation with the Company, to appoint a such successor. If no successor shall have been so appointed by the Company (or, if applicable, the Required Lenders Lenders) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent maymay (but shall not be obligated to), on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New YorkYork or Toronto or London, as applicable, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 2 contracts
Samples: Credit Agreement (Molson Coors Brewing Co), Credit Agreement (Molson Coors Brewing Co)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Canadian Administrative Agent on behalf of the Lenders and each the Issuing BankBanks. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Canadian Administrative Agent are hereby expressly authorized by the Lenders and each the Issuing BankBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders and the Issuing Banks hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations hereunder and under the other Loan Documents, Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not other than the Company or an Affiliate of the Company in a transaction permitted not prohibited by Section 6.03this Agreement. With respect to any the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), ) and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence negligence, bad faith or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a LenderBorrower, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and in good faith believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Companyany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Agent. In taking any discretionary action hereunder, or in determining whether any provision hereof is applicable to any event, transaction or circumstance, the Administrative Agent may, in its discretion, but shall not be required (unless required by any other express provision hereof) to, communicate such proposed action or determination to the Lenders prior to taking or making the same, and shall be entitled (subject to any otherwise applicable requirement of Section 10.02(b)), in the absence of any contrary communication received from any Lender within a reasonable period of time specified in such communication from the Administrative Agent, to assume that such proposed action or determination is satisfactory to such Lender. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Company shall have the right, with the consent of the Required Lenders (not to be unreasonably withheld or delayed), to appoint a successor; provided, that if a Default has occurred and is continuing, the Required Lenders, and not the Company, shall have the right, in consultation with the Company, to appoint a such successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New YorkYork or Toronto or London, as applicable, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. It is agreed that the Syndication Agent shall, in its capacity as such, have no duties or responsibilities under this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Molson Coors Brewing Co), Credit Agreement (Molson Coors Brewing Co)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each the Issuing Bank. Each of the Lenders, each assignee of any such Lender and each the Issuing Bank hereby irrevocably authorizes the Agents to take such actions on their behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent Agents are hereby expressly authorized by the Lenders and each the Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks Bank all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders or the Issuing Bank hereunder, and promptly to distribute to each Lender or the Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.0211.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.0211.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a LenderBorrower, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Companyany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 11.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Each Lender hereby acknowledges that each institution named on the cover page of this Agreement as Co-Syndication Agent has no duties or responsibilities hereunder other than, in the case of a Co-Syndication Agent that is a Lender, in its capacity as a Lender.
Appears in 2 contracts
Samples: Credit Agreement (Waters Corp /De/), Execution (Waters Corp /De/)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, JPMCB Inc. is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lender, hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to any of the Company Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative such Agent. Without limiting the generality None of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release Agents nor any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor their Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with any of them except to the consent extent finally judicially determined to have resulted from its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Agent also may rely upon None of the Agents nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by 108 Table of Contents or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right, in consultation with the Company, right to appoint a successor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500.0 million or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither of SSBI or DBSI, each as a Joint Lead Arranger, in such capacity, nor DBSI, as Syndication Agent, or 109 Table of Contents JPMorgan, as Documentation Agent, shall have any obligations, duties or responsibilities, and shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 2 contracts
Samples: Credit Agreement (Constar International Inc), Credit Agreement (Constar Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent, Agent and JPMEL Chase is hereby appointed to act as London CAF Agent, on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank holder and to exercise such powers as are specifically delegated to the Agents by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing Bankthe CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as CAF No Agent or any of its Affiliates in any capacity. No Agent directors, officers, employees or agents shall be liable as such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the covenantsterms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other terms instruments or conditions set forth herein or therein, (iv) agreements. The Agents may deem and treat the validity, enforceability, effectiveness or genuineness of Lender which makes any Loan Document or any other agreementas the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, instrument or documentgiven as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or (v) refraining from acting, in accordance with written instructions signed by the satisfaction of Required Lenders and, except as otherwise specifically provided herein, such instructions and any condition set forth in Article IV action or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to inaction pursuant thereto shall be delivered to such Agentbinding on all the Lenders. Each Agent shall of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each Agent also of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint a successorsuccessor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignationWith respect to the Loans made by it hereunder, then each of the retiring Agents, in its individual capacity and not as an Agent mayshall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be a bank with an office not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in New Yorkthe amount of such pro rata share, New Yorkfrom and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or an Affiliate disbursements of any such bank. Upon the acceptance of its appointment as Agent hereunder kind or nature whatsoever which may be imposed on, incurred by a successor, such successor shall succeed or asserted against it in any way relating to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions or arising out of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of Agreement or any actions action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be taken by liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of them while it was acting as Agentits directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility B Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 2 contracts
Samples: Credit Facility Agreement (Tu Acquisitions PLC), Credit Facility Agreement (Texas Utilities Co /Tx/)
The Agents. In order to expedite Appointment . Each Lender hereby irrevocably designates and appoints each Agent as the transactions contemplated by agent of such Lender under this AgreementAgreement and the other Loan Documents, JPMCB is hereby appointed to act as Administrative and each such Lender irrevocably authorizes each Agent, and JPMEL is hereby appointed to act as London Agentin such capacity, on behalf of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions action on its behalf under the provisions of such Lender or assignee or such Issuing Bank this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Agents such Agent by the terms of this Agreement and the other Loan Documents, together with such actions and other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, neither Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against either Agent. Without limiting the foregoing, the use of the term "agent" with respect to either Agent is used as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties. The Agents and the Lenders hereby acknowledge and agree that the Administrative Agent and, to shall be the extent expressly provided herein, the London only Agent are hereby expressly authorized by which shall be a "Representative" of the Lenders under the Senior Subordinated Note Indenture (after execution and each delivery thereof) and any other Subordinated Debt Documentation (after execution and delivery thereof). The Issuing Bank, without hereby limiting any implied authority, (a) to receive Bank and the Fronting Lenders shall act on behalf of the Lenders with respect to Letters of Credit and Fronted Offshore Loans issued or made under this Agreement and the documents associated therewith. It is understood and agreed that the Issuing Banks Bank and the Fronting Lenders (a) shall have all payments of principal of the benefits and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due immunities (i) provided to the Lenders hereunder, and promptly Agents in this Section 12 with respect to distribute to each Lender acts taken or omissions suffered by the Issuing Bank its proper share and Fronting Lenders in connection with Letters of each payment so received; Credit and Fronted Offshore Loans issued or made under this Agreement and the documents associated therewith as fully as if the term "Agents", as used in this Section 12, included the Issuing Bank and the Fronting Lenders with respect to such acts or omissions and (ii) as additionally provided in this Agreement and (b) to give notice on behalf of each shall have all of the Lenders to the Company benefits of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article subsection 12.7 or Section 13 as fully as if the term "Agents", as used in subsection 12.7 or Section 13, included the Issuing Bank and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunderFronting Lenders.
Appears in 2 contracts
Samples: Credit and Guarantee Agreement (Kinetic Concepts Inc /Tx/), Credit and Guarantee Agreement (Kinetic Concepts Inc /Tx/)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each the Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Each of the Canadian Lenders hereby irrevocably appoints the Canadian Agent and, as its agent and authorizes the Canadian Agent to take such actions on its behalf and to exercise such powers as are delegated to the extent expressly provided herein, the London Canadian Agent are hereby expressly authorized by the Lenders terms hereof, together with such actions and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf powers as are reasonably incidental thereto. Each of the UK Lenders hereby irrevocably appoints the UK Agent as its agent and authorizes the Issuing Banks all payments of principal of UK Agent to take such actions on its behalf and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to exercise such powers as are delegated to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative UK Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents terms hereof, together with such actions and powers as received by the Administrative Agentare reasonably incidental thereto. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Each bank serving as an Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an such Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents hereby that the such Agent is required to exercise upon receipt of notice in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.0211.02), and (c) except as expressly set forth in the Loan Documentsherein, no Agent shall have any duty to disclose, and no Agent or shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution bank serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.0211.02) or in the absence of its own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company a Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinherein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Companyany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks (in the case of the Administrative Agent) and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBanks (in the case of a successor Administrative Agent), appoint a successor Agent, which, in the case of the Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank; in the case of the Canadian Agent, shall be a bank with an office in Toronto, Canada, or an Affiliate of any such bank; and in the case of the UK Agent, shall be a bank with an office in London, England, or an Affiliate of any such bank. The appointment of a successor Canadian Agent or UK Agent shall be subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld). Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by any Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between such Borrower and such successor. After the an Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 11.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 2 contracts
Samples: Credit Agreement (Yellow Roadway Corp), Credit Agreement (Yellow Roadway Corp)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB Chase is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, CAF Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank holder and to exercise such powers as are specifically delegated to the Agents by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing Bankthe CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks CAF Agent all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender or Issuing Bank and the CAF Agent its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrowers pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as No Agent or any of its Affiliates in any capacity. No Agent directors, officers, employees or agents shall be liable as such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the covenantsterms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other terms instruments or conditions set forth herein or therein, (iv) agreements. The Agents may deem and treat the validity, enforceability, effectiveness or genuineness of Lender which makes any Loan Document or any other agreementas the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, instrument or documentgiven as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or (v) refraining from acting, in accordance with written instructions signed by the satisfaction of Required Lenders and, except as otherwise specifically provided herein, such instructions and any condition set forth in Article IV action or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to inaction pursuant thereto shall be delivered to such Agentbinding on all the Lenders. Each Agent shall of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each Agent also of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that neither of the Agents shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint a successorsuccessor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be Agent, having a bank with an office in New York, New York, combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its any appointment as Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the any Agent's resignation hereunder, the provisions of this Article and Section 10.03 8.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Agent. With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (ii) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility B Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or related agreement or any document furnished hereunder or thereunder. Neither Bank of America, N.A. nor Citibank, N.A. shall, by virtue of its designation as "Co-Syndication Agent", nor shall The Bank of New York, by virtue of its designation as "Documentation Agent", have any duties, liabilities, obligations or responsibilities under this Agreement other than as a Lender hereunder.
Appears in 2 contracts
Samples: Credit Facility Agreement (Txu Electric Co), Credit Agreement (Txu Electric Co)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, JPMCB Inc. is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankSecured Party, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks Secured Parties all payments of principal of and interest on the LoansObligations, all payments in respect of LC Disbursements and all other amounts due to the Lenders Secured Parties hereunder, and promptly to distribute to each Lender or Issuing Bank Secured Party its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by such Agent; (d) to enter into the Administrative Agent. Without limiting the generality Security Documents on behalf of the foregoing, if Secured Parties; and (e) to claim all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory Obligations owed to any Secured Party against Borrower in its own name for the Administrative Agent shall have been entered into, purpose of any Security Documents. None of the Administrative Agent is hereby expressly authorized to release Agents nor any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor their Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not omitted to be taken by it with any of them except to the consent extent finally judicially determined to have resulted from its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. Without limiting the foregoing, the Lenders acknowledge that the Collateral Agent will use commercially reasonable efforts to substantially comply with the requirements of the Arizona Blind Trust Act, with respect to Mortgaged Properties located in Arizona, pursuant to advice of Arizona local counsel to Borrower. However, the Collateral Agent will in no event be liable to the Lenders for non-compliance with the Arizona Blind Trust Act or for any consequences therefrom. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or persons. Each Agent also may rely upon None of the Agents nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Banks, the LC Facility Issuing Bank and the CompanyBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right, in consultation with the Company, right to appoint a successor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders Lenders, the Issuing Banks and the LC Facility Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500.0 million or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI and JPMSI, as Joint Lead Arrangers, nor JPMCB as Syndication Agent, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 2 contracts
Samples: Credit Agreement (Rural Metro Corp /De/), Credit Agreement (Rural Metro Corp /De/)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent, Agent and JPMEL Chase is hereby appointed to act as London CAF Agent, on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank holder and to exercise such powers as are specifically delegated to the Agents by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing Bankthe CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks CAF Agent all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender or Issuing Bank and the CAF Agent its proper share of each payment so received; (ba) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as No Agent or any of its Affiliates in any capacity. No Agent directors, officers, employees or agents shall be liable as such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the covenantsterms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other terms instruments or conditions set forth herein or therein, (iv) agreements. The Agents may deem and treat the validity, enforceability, effectiveness or genuineness of Lender which makes any Loan Document or any other agreementas the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, instrument or documentgiven as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or (v) refraining from acting, in accordance with written instructions signed by the satisfaction of Required Lenders and, except as otherwise specifically provided herein, such instructions and any condition set forth in Article IV action or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to inaction pursuant thereto shall be delivered to such Agentbinding on all the Lenders. Each Agent shall of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each Agent also of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint a successorsuccessor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be Agent, having a bank with an office in New York, New York, combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its any appointment as Agent hereunder by a successorsuccessor bank, such successor shall succeed With respect to and become vested with all the rightsLoans made by it hereunder, powers, privileges and duties each of the retiring Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the retiring Agent Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunderhave been terminated, the provisions amount of this Article and Section 10.03 shall continue in effect its outstanding Loans) of any expenses incurred for the benefit of such retiring the Lenders in its role as Agent, its sub-including counsel fees and compensation of agents and their respective Related Parties employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in respect the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any actions kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be taken by liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of them while it was acting as Agentits directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 2 contracts
Samples: Credit Facility Agreement (Texas Utilities Co /Tx/), Credit Facility Agreement (Tu Acquisitions PLC)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement to serve as administrative agent hereunder and under the other Loan Documents, and authorizes the Agents such entity to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each of the Issuing Banks hereby irrevocably appoints the entity named as Issuing Banks Agent in the heading of this Agreement to serve as the issuing banks agent hereunder and under the other Loan Documents and authorizes such entity to take such actions and to exercise such powers as are delegated to the Issuing Banks Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Person serving as the Administrative Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and or the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as an Issuing Bank as any other Lender Issuing Bank and may exercise the same as though it were not an the Administrative Agent or the Issuing Banks Agent, and the Agents such Person and their its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not an Agentthe Administrative Agent or the Issuing Banks Agent hereunder and without any duty to account therefor to the Issuing Banks. The Agents Administrative Agent and the Issuing Banks Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no neither the Administrative Agent nor the Issuing Banks Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no neither the Administrative Agent nor the Issuing Banks Agent shall have any duty to take any discretionary action or to exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise upon receipt of notice in writing by the Required Lenders Issuing Banks (or such other number or percentage of the Lenders Issuing Banks as shall be necessary under the circumstances as provided in Section 10.02)9.02) or that the Issuing Banks Agent is required to exercise, provided that neither the Administrative Agent nor the Issuing Banks Agent shall be required to take any action that, in its opinion, could expose the Administrative Agent or the Issuing Banks Agent, as the case may be, to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, no neither the Administrative Agent nor the Issuing Banks Agent shall have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its the Subsidiaries that is communicated to or obtained by the institution Person serving as Administrative Agent, the Issuing Banks Agent or any of its Affiliates their Related Parties in any capacity. No The Administrative Agent and the Issuing Banks Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders Issuing Banks (or such other number or percentage of the Lenders Issuing Banks as shall be necessary necessary, or as the Administrative Agent or the Issuing Banks Agent, as the case may be, shall believe in good faith to be necessary, under the circumstances as provided in Section 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No Neither the Administrative Agent nor the Issuing Banks Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent or the Issuing Banks Agent by the Company Borrower or a Lenderan Issuing Bank, and no neither the Administrative Agent nor the Issuing Banks Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinin any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent or the Issuing Banks Agent, as applicable. Each The Administrative Agent and the Issuing Banks Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each The Administrative Agent and Issuing Banks Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each of the Administrative Agent and the Issuing Banks Agent may consult with legal counsel (who may be counsel for the CompanyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Administrative Agent and the Issuing Banks Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such it. The Administrative Agent. Each , the Issuing Banks Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each the Administrative Agent, the Issuing Banks Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Administrative Agent or Issuing Banks Agent, as applicable. Without limiting the foregoing, the Issuing Banks Agent may appoint any Issuing Bank as a sub-agent of the Issuing Banks Agent for the purpose of holding any XX Xxxx Collateral. Each Issuing Bank agrees that, notwithstanding any such appointment of an Issuing Bank as a sub-agent of the Issuing Banks Agent, the Issuing Banks Agent shall retain exclusive dominion and control, including the exclusive right of withdrawal, over the XX Xxxx Collateral Account (which term, for purposes of this paragraph and each other provision hereof, shall include any deposit or other account in which any such sub-agent holds any XX Xxxx Collateral) and the XX Xxxx Collateral (which term, for the avoidance of doubt, shall include any portion thereof held by any sub-agent of the Issuing Banks Agent), except to the extent such dominion and control shall have been delegated to such Issuing Bank as a sub-agent of the Issuing Banks Agent. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the LendersIssuing Banks, the Issuing Banks Agent and the CompanyBorrower. Upon any such resignation, the Required Lenders Issuing Banks shall have the right, in consultation with the CompanyBorrower’s consent (which consent shall not be unreasonably withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the Required Lenders Issuing Banks and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Subject to the appointment and acceptance of a successor to the Issuing Banks Agent as provided in this paragraph, the Issuing Banks Agent may resign at any time by notifying the Administrative Agent, the Issuing Banks and the Borrower. Upon any such resignation, the Issuing Banks shall have the right, with the Borrower’s consent (which consent shall not be unreasonably withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the Issuing Banks and shall have accepted such appointment within 30 days after the retiring Issuing Banks Agent gives notice of its resignation, then the retiring Issuing Banks Agent may, on behalf of the Issuing Banks, appoint a successor Issuing Banks Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Issuing Banks Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Issuing Banks Agent, and the retiring Issuing Banks Agent shall be discharged from its duties and obligations hereunder. After the Issuing Banks Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Issuing Banks Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Issuing Banks Agent. Each Lender Issuing Bank acknowledges that it has, independently and without reliance upon the Agents or Administrative Agent, the Issuing Banks Agent, any other Lender Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Issuing Bank also acknowledges that it will, independently and without reliance upon the Agents Administrative Agent, the Issuing Banks Agent or any other Lender Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Blockbuster Inc)
The Agents. In order to expedite the transactions contemplated by this AgreementSECTION 8.01. The Agents. Citicorp North America, JPMCB Inc. is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and (d) to enter into the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Security Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage on behalf of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (ce) except as expressly set forth to claim all Obligations owed to any Lender against the Borrower in its own name for the Loan purpose of any Security Documents, no Agent shall have . None of the Agents nor any duty to disclose, and no Agent of their Related Parties shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving Lenders as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not omitted to be taken by it with any of them except to the consent extent finally judicially determined to have resulted from its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Agent also may rely upon None of the Agents nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right, in consultation with the Company, right to appoint a successor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500.0 million or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's resignation hereunder, the provisions of this Article and Section 10.03 10.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI, as a Lead Arranger, in such capacity, nor CGMI or Banc One, as Syndication Agents, or RFC, as Documentation Agent, shall have any obligations, duties or responsibilities, and shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB The JPMorgan Chase Bank is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lender, hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to any of the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrowers pursuant to this Agreement or the other Loan Documents as received by the Administrative such Agent. Without limiting the generality Neither Agent nor any of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Neither any Agent also may rely upon nor any statement made of its Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that neither Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's resignation hereunder, the provisions of this Article and Section 10.03 10.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with CCSC or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents either Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents either Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Each Lender hereby authorizes the Administrative Agent to enter into the Intercreditor Agreement on behalf of such Lender and to exercise its rights and perform its obligations thereunder.
Appears in 1 contract
Samples: And (Crown Cork & Seal Co Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably appoints the Administrative Agent and Collateral Agent as its agent and authorizes the Agents Administrative Agent and Collateral Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf For purposes of the Lenders and the Issuing Banks all payments of principal of and interest on the Loansthis Article VIII, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory references to the Administrative Agent shall have been entered into, be deemed to be references to both the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and the Collateral Agent. The Administrative Agent also shall act as the Collateral Agent under the other Loan Documents, in . The bank serving as the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Administrative Agent in its individual capacity and not as Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an the Administrative Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agentthe Administrative Agent hereunder, and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no the Administrative Agent shall not be subject to any fiduciary or other implied dutiesduties to any Lender, regardless of whether a Default or Event of Default has occurred and is continuing, (b) no each Lender agrees (i) that the use of the term “agent” herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied or express obligations arising under agency doctrine of any applicable law, and is used solely as a matter of market custom to reflect an exclusively administrative relationship between contracting parties, and (ii) that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby, (c) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise upon receipt of notice in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (cd) except as expressly set forth in the Loan Documents, no the Administrative Agent shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any of its the Subsidiaries that is communicated to or obtained by the institution bank serving as Administrative Agent or any of its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Company Borrower or a Lender, and no the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinin any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each The Administrative Agent may consult with legal counsel (who may be counsel for the CompanyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. Each The Administrative Agent and any such sub-agent subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent subagent and to the Related Parties of each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the CompanyBorrower, to appoint a successorsuccessor who shall either be (i) a “U.S. person” and a “financial institution” within the meaning of United States Treasury Regulations Section 1.1441-1 or (ii) a U.S. branch of a non-U.S. financial institution that has agreed to be treated as a “United States person” within the meaning of Section 7701(a)(30) of the Code. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender (i) represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business, and that it is capable of evaluating and understanding the terms, conditions and risks of becoming a Lender under this Agreement, including in the context of related transactions to be entered into by the Borrower, and multiple roles to be performed by the Administrative Agent, the Arranger and their respective Affiliates, in connection herewith or therewith, and (ii) acknowledges that it has, independently and without reliance upon the Agents or Administrative Agent, the Arranger, any other Lender or any Related Party of any of the foregoing and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it , and will, independently and without reliance upon the Agents or Administrative Agent, the Arranger, any other Lender or any Related Party of any of the foregoing and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the Secured Parties with respect thereto (including the Intercreditor Agreement or any Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement, if applicable) as contemplated by and in accordance with the provisions of this Agreement and the Security Documents without any further consent from any Secured Party, which terms shall be reasonably satisfactory to Administrative Agent. No Person named as an Arranger in this Agreement shall have any liability under this Agreement or any other Loan Document in its capacity as such.
Appears in 1 contract
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, JPMCB Chase is hereby appointed to act as Administrative Agent, FTX Collateral Agent and JPMEL FRP Collateral Agent for the Banks under this Agreement and the Security Agreements, and Chase is hereby appointed to act as London Agent, on behalf the Documentary Agent for the Banks under this Agreement. None of the Lenders Agents shall have any duties or responsibilities with respect hereto except those expressly set forth herein or in the other Loan Documents. Each Bank, and each Issuing Bank. Each of the Lenders, each assignee subsequent holder of any such Lender and each Issuing Bank Promissory Note by its acceptance thereof, hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders Banks hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders Banks to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunderhereunder or as directed by the Required Banks; and (c) to distribute to each Lender Bank copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrowers pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is Collateral Agents are hereby expressly authorized to release execute any Guarantor from its obligations hereunder and all documents (including releases) with respect to the collateral under the other Loan Documents, in Security Agreements and the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate rights of the Company in a transaction permitted by Section 6.03. With secured parties with respect to any Loans made by it hereunderthereto, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice provisions of any such counsel, accountants or expertsthis Agreement and the Security Agreements. Each of the Agent and the Collateral Agents may perform exercise any and all of its duties and exercise its rights and powers hereunder by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Partiesagents, officers or employees. The exculpatory provisions of In addition, each Bank hereby irrevocably authorizes and directs the preceding paragraphs shall apply Collateral Agents to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent mayenter, on behalf of each of them, into the Lenders FTX Intercreditor Agreement (in the case of the FTX Collateral Agent) and the Issuing BanksSecurity Agreements, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed contemplated pursuant to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Freeport McMoran Resource Partners Limited Partnership)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each the Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Banks hereby irrevocably appoints Citibank, N.A. as its administrative agent and authorizes the Agents Citibank, N.A. to take such actions on behalf its behalf, including execution of such Lender or assignee or such Issuing Bank the other Loan Documents, and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto, and Citibank, N.A. xxxxxx accepts such appointment. The Citibank, N.A. or an Affiliate or designee thereof shall also act as the Collateral Agent under the Loan Documents (for purposes of this Article VIII and Sections 9.03 and 2.17, the Administrative Agent andand the Collateral Agent shall be collectively referred to as the “Agents”), to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments hereby irrevocably appoints and authorizes Citibank, N.A. (and Citibank, N.A. hereby accepts such appointment) and each such Affiliate and designee to act as the agent of principal such Xxxxxx and Issuing Bank for purposes of acquiring, holding and interest on the Loans, all payments in respect of LC Disbursements enforcing any and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice Liens on behalf of each Collateral granted by any of the Lenders Loan Parties to secure any of the Company of Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; co-agents, sub-agents and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered attorneys-in-fact appointed by the Company or any other Loan Party Collateral Agent pursuant to this Agreement Article VIII for purposes of holding or enforcing any Lien on the other Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.03), as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents as received by if set forth in full herein with respect thereto. The banks serving as the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations Agents hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in their capacity as Lenders as any other Lender and may exercise the same as though it they were not an Agent, and the Agents such banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Irish Holdco or any Subsidiary or other Affiliate thereof as if it they were not an AgentAgent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the respective Agent is required to exercise upon receipt of notice in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in the Loan Documents, no Agent the Agents shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the Company Irish Holdco or any of its Subsidiaries that is communicated to or obtained by the institution any bank serving as an Agent or any of its Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02 or elsewhere in the Loan Documents) or in the absence of its own gross negligence or wilful willful misconduct. No Agent The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the respective Agent by Irish Holdco, the Company Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinin any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent The Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it them to be genuine and to have been signed or sent by the proper Person. Each Agent The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for Irish Holdco, the CompanySubsidiary Guarantors or the Borrower), independent accountants and other experts selected by itthem, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each Agent The Agents may perform any and all its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such the respective Agent. Each Agent The Agents and any such sub-agent may perform any and all its their duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Banks, the Borrower and any Additional Borrower. Any such resignation by the Administrative Agent hereunder shall also constitute its resignation as an Issuing Bank and the CompanySwingline Lender, as applicable, in which case the resigning Administrative Agent (x) shall not be required to issue any further Letters of Credit or make any additional Swingline Loans hereunder and (y) shall maintain all of its rights as Issuing Bank or Swingline Lender, as the case may be, with respect to any Letters of Credit issued by it, or Swingline Loans made by it, prior to the date of such resignation. Upon any such resignation, the Required Lenders shall have the right, in consultation right (with the Companyconsent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower and any Additional Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower, any Additional Borrower and such successor. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article VIII and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Lenders, the Borrower and any Additional Borrower. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed); provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower and any Additional Borrower to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent’s resignation hereunder, the provisions of this Article VIII and Section 9.03 shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Horizon Therapeutics Public LTD Co)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably appoints the Administrative Agent and Collateral Agent as its agent and authorizes the Agents Administrative Agent and Collateral Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf For purposes of the Lenders and the Issuing Banks all payments of principal of and interest on the Loansthis Article VIII, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory references to the Administrative Agent shall have been entered into, be deemed to be references to both the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and the Collateral Agent. The Administrative Agent shall act as the Collateral Agent under the other Loan Documents, in . The bank serving as the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Administrative Agent in its individual capacity and not as Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an the Administrative Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agentthe Administrative Agent hereunder, and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no the Administrative Agent shall not be subject to any fiduciary or other implied dutiesduties to any Lender, regardless of whether a Default or Event of Default has occurred and is continuing, (b) no each Lender agrees (i) that the use of the term “agent” herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied or express obligations arising under agency doctrine of any applicable law, and is used solely as a matter of market custom to reflect an exclusively administrative relationship between contracting parties, and (ii) that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby, (c) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise upon receipt of notice in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (cd) except as expressly set forth in the Loan Documents, no the Administrative Agent shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any of its the Subsidiaries that is communicated to or obtained by the institution bank serving as Administrative Agent or any of its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Company Borrower or a Lender, and no the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinin any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each The Administrative Agent may consult with legal counsel (who may be counsel for the CompanyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. Each The Administrative Agent and any such sub-agent subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent subagent and to the Related Parties of each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the CompanyBorrower, to appoint a successorsuccessor who shall either be (i) a “U.S. person” and a “financial institution” within the meaning of United States Treasury Regulations Section 1.1441-1 or (ii) a U.S. branch of a non-U.S. financial institution that has agreed to be treated as a “United States person” within the meaning of Section 7701(a)(30) of the Code. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender (i) represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business, and that it is capable of evaluating and understanding the terms, conditions and risks of becoming a Lender under this Agreement, including in the context of related transactions to be entered into by the Borrower, and multiple roles to be performed by the Administrative Agent or its Affiliates, in connection herewith or therewith, and (ii) acknowledges that it has, independently and without reliance upon the Agents or Administrative Agent, any other Lender or any Related Party of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it , and will, independently and without reliance upon the Agents or Administrative Agent, any other Lender or any Related Party of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the Secured Parties with respect thereto (including the First Lien Intercreditor Agreement or any Junior Lien Intercreditor Agreement, if applicable) as contemplated by and in accordance with the provisions of this Agreement and the Security Documents without any further consent from any Secured Party, which terms shall be reasonably satisfactory to Administrative Agent.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Select Medical Holdings Corp)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender Lenders and each the Issuing Bank Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. Each of the Loan DocumentsUS-Canadian Lenders hereby irrevocably authorizes the Canadian Administrative Agent to take such actions on its behalf and to exercise such powers as are specifically delegated to the Canadian Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans (excepting C$ Loans, all payments in respect of ) and the LC Disbursements and all other amounts due to the Lenders and Issuing Lenders (excepting with respect to the US-Canadian Lenders, any Fees or other fees payable under this Agreement) hereunder, and promptly to distribute to each Lender or and Issuing Bank Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the The Canadian Administrative Agent is hereby expressly authorized to release by the US-Canadian Lenders, without hereby limiting any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoingimplied authority, (a) no Agent shall be subject to any fiduciary or receive on behalf of the US-Canadian Lenders all payments of principal of and interest on the C$ Loans and all other implied dutiesamounts due to the US-Canadian Lenders hereunder (except in respect of their US$-Canadian Loans), regardless and promptly to distribute to each US-Canadian Lender its proper share of whether a Default has occurred and is continuing, each payment so received; (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt give notice on behalf of notice in writing by the Required Lenders (or such other number or percentage each of the US-Canadian Lenders as shall be necessary under to the circumstances as provided Administrative Agent of any Event of Default specified in Section 10.02), this Agreement of which the Canadian Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) except to distribute to each US-Canadian Lender and the Administrative Agent copies of all notices, financial statements and other materials delivered by any Canadian Borrower pursuant to this Agreement as expressly set forth in received by the Loan DocumentsCanadian Administrative Agent. Neither any Agent nor any of its directors, no Agent shall have any duty to discloseofficers, and no Agent employees or agents shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the covenantsterms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other terms instruments or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or documentagreements. The Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentor, other than to confirm receipt of items when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. The Administrative Agent and the Canadian Administrative Agent shall, in the absence of knowledge to be delivered to such Agent. Each Agent shall the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any Lender or Issuing Lender of any of its obligations hereunder or to any Lender or Issuing Lender on account of the failure of or delay in performance or breach by any other Agent, any other Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also and the Canadian Administrative Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed by it to be made the advice of legal counsel selected by the proper Person, and shall not incur any liability for relying thereon. Each Administrative Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders and the Issuing Lenders hereby acknowledge that neither the Administrative Agent nor the Canadian Administrative Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of the preceding paragraphs this Agreement unless it shall apply be requested in writing to any such sub-agent and do so by (i) with respect to the Related Parties of each Agent and any such sub-agentAdministrative Agent, the Required Lenders or the Required Revolving Lenders, as applicable, and shall apply (ii) with respect to their respective activities in connection with the syndication of Canadian Administrative Agent, the revolving credit facility provided for herein as well as activities as AgentRequired Canadian Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Canadian Administrative Agent, the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint from the Lenders a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint from the Lenders a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 10.03 9.5 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. Subject to the appointment and acceptance of a successor Canadian Administrative Agent as provided below, the Canadian Administrative Agent may resign at any time by notifying the Administrative Agent, the US-Canadian Lenders and the Borrowers. Upon any such resignation, the Required Canadian Lenders shall have the right to appoint from the US-Canadian Lenders a successor. If no successor shall have been so appointed by the Required Canadian Lenders and shall have accepted such appointment within 30 days after the retiring Canadian Administrative Agent gives notice of its resignation, then the retiring Canadian Administrative Agent may, on behalf of the US-Canadian Lenders, appoint from the US-Canadian Lenders a successor Canadian Administrative Agent which shall be a bank with an office in New York, New York and in Xxxxxxx, Xxxxxxx, having a combined capital and surplus of at least $500,000,000 or an affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Canadian Administrative Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Canadian Administrative Agent and the retiring Canadian Administrative Agent shall be discharged from its duties and obligations hereunder. After the Canadian Administrative Agent's resignation hereunder, the provisions of this Article and Section 9.5 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Canadian Administrative Agent. With respect to the Loans made by them and their LC Exposure hereunder, the Agents in their individual capacity and not as Agents shall have the same rights and powers as any other Lender and may exercise the same as though they were not Agents, and the Agents and their affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of their respective Subsidiaries or any Affiliate thereof as if they were not Agents. Each Lender and Issuing Lender agrees (i) to reimburse the Administrative Agent and the Canadian Administrative Agent in the amount of its pro rata share (based on its Total Facility Percentage or, after the date on which the Loans shall have been paid in full, based on its Total Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders or the Issuing Lenders by the Administrative Agent or the Canadian Administrative Agent, as applicable, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold harmless the Administrative Agent and the Canadian Administrative Agent and any of their respective directors, officers, employees or agents, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent or Canadian Administrative Agent, as applicable, in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement, to the extent the same shall not have been reimbursed by or on behalf of Viacom; provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent, the Canadian Administrative Agent or any such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent, the Canadian Administrative Agent or any of their respective directors, officers, employees or agents, as applicable. Each Lender and Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Neither the Syndication Agent, the Co-Documentation Agents, the Joint Lead Arrangers nor any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender Lenders and each the Issuing Bank Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of Loans and the LC Disbursements and all other amounts due to the Lenders and Issuing Lenders hereunder, and promptly to distribute to each Lender or and Issuing Bank Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality Neither any Agent nor any of the foregoingits directors, if all applicable mandatory prepayments under Section 2.10(c) shall have been made officers, employees or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent agents shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the covenantsterms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other terms instruments or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or documentagreements. The Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentor, other than to confirm receipt of items when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. The Administrative Agent shall, in the absence of knowledge to be delivered to such Agent. Each Agent shall the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any Lender or Issuing Lender of any of its obligations hereunder or to any Lender or Issuing Lender on account of the failure of or delay in performance or breach by any other Agent, any other Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders and the Issuing Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint from the Lenders a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint from the Lenders a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 10.03 9.5 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. With respect to the Loans made by them and their LC Exposure hereunder, the Agents in their individual capacity and not as Agents shall have the same rights and powers as any other Lender and may exercise the same as though they were not Agents, and the Agents and their affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of their respective Subsidiaries or any Affiliate thereof as if they were not Agents. Each Lender and Issuing Lender agrees (i) to reimburse the Administrative Agent in the amount of its pro rata share (based on its Total Facility Percentage or, after the date on which the Loans shall have been paid in full, based on its Total Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold harmless the Administrative Agent and any of its directors, officers, employees or agents, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement, to the extent the same shall not have been reimbursed by or on behalf of Viacom; provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender and Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Neither the Documentation Agent, the Co-Syndication Agents, the Lead Arranger nor any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, JPMCB Inc. is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders Lenders. Each Lender that holds Loans or has Commitments and each Issuing Bankholder of any Related Hedging Obligations and each person holding Overdraft Obligations (in each case, in its capacity as such) hereby irrevocably designates and appoints the Collateral Agent as an agent of such person under this Agreement and each other Loan Document to which the Collateral Agent is a party. Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to any of the Company Loan Parties of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by any of the Company Loan Parties pursuant to this Agreement as received by such Agent. None of the Agents nor any of their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the terms, conditions, covenants or agreements contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Party Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. None of the Agents nor any of their Related Parties shall have any responsibility to the Loan Parties on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to this Agreement or the other provisions of any Loan Documents as received Document unless it shall be requested in writing to do so by the Administrative AgentRequisite Lenders. Without limiting Subject to the generality appointment and acceptance of a successor Agent as provided below, any Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Requisite Lenders (with the consent of the foregoingBorrower, if all applicable mandatory prepayments under Section 2.10(cnot to be unreasonably withheld) shall have been made or arrangements therefor satisfactory the right to the Administrative Agent appoint a successor. If no successor shall have been entered intoso appointed by the Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the Administrative retiring Agent is hereby expressly authorized may (with the consent of the Borrower, not to release any Guarantor from its obligations hereunder be unreasonably withheld), on behalf of the Lenders and under the other Loan DocumentsIssuing Bank, in the event that all the capital stock of such Guarantor appoint a successor Agent which shall be solda bank with an office in New York, transferred New York, having a combined capital and surplus of at least $500.0 million or otherwise disposed of to a Person that is not an Affiliate of any such bank. Upon the Company acceptance of any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue in a transaction permitted effect for its benefit in respect of any actions taken or omitted to be taken by Section 6.03it while it was acting as an Agent. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent. In addition, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Borrower or any Subsidiary or other Affiliate thereof as if it any were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as AgentAgents. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI, as Sole Lead Arranger and Sole Bookrunner, nor Citicorp Xxxxx Xxxxxxx, Inc., as Syndication Agent, nor Citicorp North America, Inc., as Documentation Agent, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Polymer Group Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender Lenders and each the Issuing Bank Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of Loans and the LC Disbursements and all other amounts due to the Lenders and Issuing Lenders hereunder, and promptly to distribute to each Lender or and Issuing Bank Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality 58 54 Neither any Agent nor any of the foregoingits directors, if all applicable mandatory prepayments under Section 2.10(c) shall have been made officers, employees or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent agents shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the covenantsterms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other terms instruments or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or documentagreements. The Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentor, other than to confirm receipt of items when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. The Administrative Agent shall, in the absence of knowledge to be delivered to such Agent. Each Agent shall the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any Lender or Issuing Lender of any of its obligations hereunder or to any Lender or Issuing Lender on account of the failure of or delay in performance or breach by any other Agent, any other Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders and the Issuing Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint from the Lenders a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint from the Lenders a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank, which successor shall be acceptable to CBS (such acceptance not to be unreasonably withheld). Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 10.03 9.5 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (CBS Corp)
The Agents. 31 28 In order to expedite the transactions contemplated by this Agreement, JPMCB The Chase Manhattan Bank is hereby appointed to act as Administrative Agent, and JPMEL Chase Manhattan International Limited is hereby appointed to act as London Agent, on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lenders hereby irrevocably authorizes the Agents each Agent to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent Agents are hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; . The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (ba) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (cb) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Neither Agent, and the Agents and none of their Affiliates may accept deposits fromdirectors, lend money to and generally engage in any kind of business with the Company officers, employees or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoingagents, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving Lender as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower of any of the covenantsterms, agreements or other terms or conditions set forth herein or therein, (iv) except delivery to the validity, enforceability, effectiveness or genuineness Administrative Agent of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in items required by Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to it), covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such Agentinstructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall The Agents shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it them in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Agent also Neither Agent, and none of their directors, officers, employees or agents, shall have any responsibility to the Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrower of any of their respective obligations hereunder or in connection herewith. The Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, them with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it them in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by them pursuant to the provisions of this Agreement unless they shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent or London Agent, as the case may be, as provided in this paragraphbelow, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate London, as the case may be, having a combined capital and surplus of any such bankat least $500,000,000. Upon the acceptance of its any appointment as Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.32 29
Appears in 1 contract
Samples: Term Loan Agreement (Goodyear Tire & Rubber Co /Oh/)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Each bank serving as an Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the any Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the Loan other Credit Documents. Without limiting the generality of the foregoing, (a) no the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Loan other Credit Documents that the Administrative Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of or, if so specified by this Agreement, all the Lenders as shall be necessary under the circumstances as provided in Section 10.02), Lenders) and (c) except as expressly set forth herein and in the Loan other Credit Documents, no the Administrative Agent shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the any Company or any of its Subsidiaries Affiliates that is communicated to or obtained by the institution bank serving as Administrative Agent or any of its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, if so specified by this Agreement, all the Lenders, or such other number or percentage of as the Lenders as Administrative Agent shall believe in good faith shall be necessary necessary, under the circumstances as provided in Article VII and Section 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Company Borrower, or a Lender, and no the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any Loan other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder under any Credit Document or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein in the Credit Documents or thereinthe occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the a proper Person. Each An initial list of the proper Persons with respect to the Borrower appears on Schedule 8. Schedule 8 shall not be altered except in writing by a Person appearing thereon (or by a successor to such Person occupying the equivalent office). The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereonthereon so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 in all material respects (it being understood that oral notices of borrowing will be confirmed in writing by the Borrower in accordance with Section 2.03). Each In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the CompanyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by such the Administrative Agent. Each The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the CompanyBorrower, to appoint a successorsuccessor which, so long as no Event of Default is continuing, shall be reasonably acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunderhereunder or under the other Credit Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor; provided that the predecessor Administrative Agent shall pay the unearned portion of any fees paid in advance to either the successor Administrative Agent or the Borrower. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their Applicable Percentage on the date on which indemnification is sought under this Article VIII (or, if indemnification is sought after the date upon which the Loans shall have been paid in full, ratably in accordance with their Applicable Percentage immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent’s gross negligence or willful misconduct. The agreements in this paragraph shall survive the payment of the Loans and all other amounts payable hereunder. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Co-Syndication Agents and Co-Documentation Agents shall not have any duties or responsibilities under any Credit Document in their capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Time Warner Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB Royal Bank of Canada is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankSecured Party, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks Secured Parties all payments of principal of and interest on the LoansObligations, all payments in respect of LC Disbursements and all other amounts due to the Lenders Secured Parties hereunder, and promptly to distribute to each Lender or Issuing Bank Secured Party its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by such Agent; (d) to enter into the Administrative Agent. Without limiting the generality Security Documents on behalf of the foregoing, if Secured Parties; and (e) to claim all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory Obligations owed to any Secured Party against Borrower in its own name for the Administrative Agent shall have been entered into, purpose of any Security Documents. None of the Administrative Agent is hereby expressly authorized to release Agents nor any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor their Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not omitted to be taken by it with any of them except to the consent extent finally judicially determined to have resulted from its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or persons. Each Agent also may rely upon None of the Agents nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the CompanyBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right, in consultation with the Company, right to appoint a successor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. Each appointment under this paragraph shall be subject to the prior written consent of the Borrower (which consent shall not be unreasonably withheld or delayed) so long as no Event of Default then exists. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither RBC Capital Markets, as Lead Arranger, nor General Electric Capital Corporation, as Syndication Agent, nor JPMorgan Chase Bank, N.A. nor Bank of Arizona, N.A., as Co-Documentation Agents, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent, London Agent and JPMEL is hereby appointed to act as London Agent, Canadian Agent on behalf of the Lenders. Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent other Agents are hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any of the Company Borrowers or any Subsidiary of their Subsidiaries or other Affiliate Affiliates thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to any of the Company Borrowers or any of its their Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Borrower (in which case such Agent shall give written notice to each other Lender), and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Companyany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Companyconsent of the Company (except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless each Agent and any of its Related Parties, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Borrower; provided that no Lender shall be liable to an Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of such Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. None of the Lenders identified on the facing page or signature pages of this Agreement or elsewhere herein as a “syndication agent” or “documentation agent” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB Chemical Bank is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and each Issuing Bankthe Fronting Bank (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the "Agents"). Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank Lender, hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing the Fronting Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing the Fronting Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks Fronting Bank (i) all payments of principal of and interest on (A) the Revolving Loans, (B) the HK Offered Rate Facility Loans, (C) only after a Thai Facility Participations Event, the Thai Facility Loans and (D) only after a Thai Offered Rate Facility Participations Event, the Thai Offered Rate Loans, (ii) all payments in respect of LC L/C Disbursements and (iii) all other amounts due to the Lenders hereunderhereunder (other than Thai Facility Loans and Thai Offered Rate Loans except pursuant to clauses (C) or (D) above), and promptly to distribute to each Lender or Issuing the Fronting Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to IMS and the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder, provided that the Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default unless the Administrative Agent has received notice from a Lender or a Loan Party referring to this Agreement, describing such Event of Default and stating that such notice is a "notice of an event of default"; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company any Borrower or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is Agents are hereby expressly authorized to release execute any Guarantor from its obligations hereunder and under all documents (including releases) with respect to the other Loan Documents, in Collateral and the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate rights of the Company Secured Parties with respect thereto, as contemplated by and in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have accordance with the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, provisions of this Agreement and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Security Documents. Without limiting Neither the generality Agents nor any of the foregoingtheir respective directors, (a) no Agent shall be subject to any fiduciary officers, employees or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent agents shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for for, or have any duty be required to ascertain or inquire into (i) to make any inquiry concerning the accuracy or completeness of, any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by IMS or any Subsidiary of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to Loan 77 Documents, instruments or agreements. The Agents shall in all cases be delivered to fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such Agentinstructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Neither the Agents nor any of their respective directors, officers, employees or agents shall have any responsibility to IMS or any Subsidiary on account of the failure of or delay in performance or breach by any Lender or the Fronting Bank of any of its obligations hereunder or to any Lender or the Fronting Bank on account of the failure of or delay in performance or breach by any other Lender or the Fronting Bank or IMS or any Subsidiary of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent also of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel. In no event any Agent be obligated to take any action, accountants or experts. Each Agent may perform omit to take any and all its duties and exercise its rights and powers by action, in contravention of any applicable law or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Partiesregulation. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring hereby acknowledge that neither Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as Agreement unless it shall from time be requested in writing to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunderdo so by the Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (International Manufacturing Services Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably appoints Chase and Citibank as its agent hereunder and under the other Financing Documents and authorizes the Agents Chase and Citibank to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Administrative Agents by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto (including the execution of the Loan DocumentsCollateral Agency and Intercreditor Agreement). Each of the Lenders hereby irrevocably appoints Citibank as its paying agent hereunder and under the other Financing Documents and authorizes Citibank to take such actions on its behalf and to exercise such powers as are delegated to the Paying Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, following provisions of this Article IX shall apply to the extent expressly provided herein, the London Paying Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which mutatis mutandis. The Persons serving as the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations Agents hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agentthe Administrative Agents, and the Agents such Person and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agentthe Administrative Agents hereunder. The Administrative Agents shall not have any duties or obligations except those expressly set forth herein and in the Loan other Financing Documents. Without limiting the generality of the foregoing, (a) no Agent the Administrative Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent the Administrative Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Loan other Financing Documents that the Agent is Administrative Agents are required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02)Lenders, and (c) except as expressly set forth herein and in the Loan other Financing Documents, no Agent the Administrative Agents shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the institution bank serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.WORKING CAPITAL AGREEMENT -------------------------
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is the Persons named in the heading of this Agreement (and their successors) are hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Agent under the Loan Documents on behalf of the Lenders and each the Issuing Bank. Each of the Lenders, each assignee of any such Lender and each the Issuing Bank hereby irrevocably authorizes the Agents to take such actions on their behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent Agents are hereby expressly authorized by the Lenders and each the Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks Bank all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders or the Issuing Bank hereunder, and promptly to distribute to each Lender or the Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder and without any duty to account therefor to the Lenders or Issuing Bank. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the such Agent is required to exercise as directed upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.02the Loan Documents), provided that the Agent shall not be required to take any action that, in its opinion, could expose the Agent to liability or be contrary to any Loan Document or applicable law, rule or regulation, and (c) except as expressly set forth in the Loan Documents, no Agent Agents shall not have any duty to disclose, and no Agent Agents shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries or other Affiliates thereof that is communicated to or obtained by the institution Person serving as Agent or any of its Affiliates in any capacity. No Agent Agents shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.02the Loan Documents) or in the absence of its own gross negligence or wilful willful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment. No Agent Agents shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a LenderCompany, and no Agent Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein in any Loan Document or thereinthe occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory or sender thereof). Each Agent also may rely rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory or sender thereof), and shall not incur may act upon any liability for relying thereonsuch statement prior to receipt of written confirmation thereof. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any the Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunderhereunder and under the other Loan Documents. After the Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Agents or the Lenders on the Effective Date. None of the Arrangers, the Syndication Agents or the Documentation Agents shall have any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or as Agents or Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder.
Appears in 1 contract
Samples: Credit Agreement (Waters Corp /De/)
The Agents. In order to expedite Each Lender hereby appoints and authorizes (a) the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents Agent to take such actions action as agent on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers and discretion under this Agreement as are delegated to the Agents Administrative Agent by the terms of the Loan Documentshereof, together with such actions powers and discretion as are reasonably incidental thereto, and (b) the Documentation Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Documentation Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. The Administrative Agent and, As to the extent any matters not expressly provided herein, the London Agent are hereby expressly authorized for by the Lenders and each Issuing Bankthis Agreement (including, without hereby limiting any implied authoritylimitation, (a) to receive on behalf enforcement or collection of the Lenders and the Issuing Banks all payments of principal of and interest on the LoansNotes), all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in connection with its agency hereunderso acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; and (c) provided, however, that the Administrative Agent shall not be required to distribute take any action that exposes the Administrative Agent to each Lender copies of all notices, financial statements and other materials delivered by the Company personal liability or any other Loan Party pursuant that is contrary to this Agreement or the other Loan Documents as received applicable law. The Administrative Agent agrees to give to each Lender prompt notice of each notice given to it by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated pursuant to or obtained by the institution serving as terms of this Agreement. Neither the Administrative Agent or the Documentation Agent nor any of its Affiliates in any capacity. No Agent respective directors, officers, agents or employees shall be liable for any action taken or not omitted to be taken by it or them under or in connection with the consent this Agreement, except for its or at the request their own gross negligence or willful misconduct. Without limitation of the Required Lenders (or such other number or percentage generality of the Lenders foregoing, the Administrative Agent and the Documentation Agent: (i) may treat the payee of any Note as shall be necessary under the circumstances holder thereof until the Administrative Agent receives and accepts an Assignment and Acceptance entered into by the Lender that is the payee of such Note, as assignor, and an Eligible Assignee, as assignee, as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, 8.07; (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be including counsel for the CompanyBorrower), independent public accountants and other experts selected by it, it and shall not be liable for any action taken or not omitted to be taken in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by ; (iii) make no warranty or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply representation to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, Lender and shall apply not be responsible to their respective activities any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement; (iv) shall not have any duty to ascertain or to inquire as to the syndication performance or observance of any of the revolving credit facility provided for herein as well as activities as Agent. Subject to terms, covenants or conditions of this Agreement on the appointment and acceptance part of a successor Agent as provided in this paragraph, the Borrower or any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then Subsidiaries or to inspect the retiring Agent may, on behalf property (including the books and records) of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, Borrower or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successorSubsidiaries; (v) shall not be responsible to any Lender for the due execution, such successor shall succeed to and become vested with all the rightslegality, powersvalidity, privileges and duties of the retiring Agentenforceability, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereundergenuineness, the provisions sufficiency or value of this Article Agreement or any other instrument or document furnished pursuant hereto; and Section 10.03 (vi) shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties incur no liability under or in respect of this Agreement by acting upon any actions taken notice, consent, certificate or omitted other instrument or writing (which may be by telecopier, telegram or telex) believed by it to be taken genuine and signed or sent by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents proper party or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunderparties.
Appears in 1 contract
Samples: Credit Agreement (United Parcel Service of America Inc)
The Agents. In order to expedite the transactions contemplated by this AgreementSECTION 8.01. THE AGENTS. Citicorp North America, JPMCB Inc. is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders Lenders. Each Lender that holds First Lien Term Loans or has First Lien Term Commitments and each Issuing Bankholder of any Related Hedging Obligations and each person holding Overdraft Obligations (in each case, in its capacity as such) hereby irrevocably designates and appoints the First Lien Collateral Agent as an agent of such person under this Agreement and each other Loan Document to which the First Lien Collateral Agent is a party. Each Lender that holds Second Lien Term Loans or has Second Lien Term Commitments (in each case, in its capacity as such) hereby irrevocably designates and appoints the Second Lien Collateral Agent as an agent of such person under this Agreement and each other Loan Document to which the Second Lien Collateral Agent is a party. Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to any of the Company Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company Borrower pursuant to this Agreement as received by such Agent. In addition, without hereby limiting any implied authority, each First Lien Lender hereby expressly authorizes and directs the First Lien Collateral Agent to enter into the Collateral Sharing Agreement and each other Loan Document to which it is a party as its agent, each Second Lien Lender hereby expressly authorizes and directs the Second Lien Collateral Agent to enter into the Collateral Sharing Agreement and each other Loan Document to which it is a party as its agent, and each Lender agrees to be bound by the terms of the Collateral Sharing Agreement and such other Loan Documents as if it were directly a party thereto. None of the Agents nor any of their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the terms, conditions, covenants or agreements contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Party Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. None of the Agents nor any of their Related Parties shall have any responsibility to the Loan Parties on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to this Agreement or the other provisions of any Loan Documents as received Document unless it shall be requested in writing to do so by the Administrative AgentRequisite Lenders. Without limiting Subject to the generality appointment and acceptance of a successor Agent as provided below, any Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Requisite Lenders (with the consent of the foregoingBorrower, if all applicable mandatory prepayments under Section 2.10(cnot to be unreasonably withheld) shall have the right to appoint a successor; PROVIDED, HOWEVER, that until such time as all First Lien Obligations have been made paid in full in cash or arrangements therefor satisfactory Cash Equivalents, no such successor Agent shall be appointed without the approval of the Required First Lien Lenders (with the consent of the Borrower, not to the Administrative Agent be unreasonably withheld). If no successor shall have been entered intoso appointed by the Requisite Lenders or the Required First Lien Lenders, as the Administrative case may be, and shall have accepted such appointment within 30 days after the retiring Agent is hereby expressly authorized gives notice of its resignation, then the retiring Agent may (with the consent of the Borrower, not to release any Guarantor from its obligations hereunder be unreasonably withheld), on behalf of the Lenders and under the other Loan DocumentsIssuing Bank, in the event that all the capital stock of such Guarantor appoint a successor Agent which shall be solda bank with an office in New York, transferred New York, having a combined capital and surplus of at least $500.0 million or otherwise disposed of to a Person that is not an Affiliate of any such bank. Upon the Company acceptance of any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent's resignation hereunder, the provisions of this Article and Section 9.05 shall continue in a transaction permitted effect for its benefit in respect of any actions taken or omitted to be taken by Section 6.03it while it was acting as an Agent. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent. In addition, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Borrower or any Subsidiary or other Affiliate thereof as if it any were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as AgentAgents. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI, as Sole Lead Arranger and Sole Bookrunner, nor Citicorp North America, Inc., as Syndication Agent, nor Citicorp North America, Inc., as Documentation Agent, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Polymer Group Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Canadian Administrative Agent on behalf of the Lenders and each the Issuing BankBanks. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Canadian Administrative Agent are hereby expressly authorized by the Lenders and each the Issuing BankBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders and the Issuing Banks hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations hereunder and under the other Loan Documents, Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not other than the Company or an Affiliate of the Company in a transaction permitted not prohibited by Section 6.03this Agreement. It is understood and agreed that the use of the term "agent" herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent and the Canadian Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. With respect to any the Loans made by it hereunderunder this Agreement, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent under the Loan Documents and without any duty to account therefor to the Lenders. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents, and their duties under the Loan Documents shall be administrative in nature. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary expressly provided for herein or in the other Loan Documents); provided that such Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under the circumstances as provided any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in Section 10.02)violation of any Debtor Relief Law, and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence negligence, bad faith or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a LenderBorrower, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereintherein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and in good faith believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, each Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless such Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for the Companyany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs this Article shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Agent. In taking any discretionary action hereunder, or in determining whether any provision hereof is applicable to any event, transaction or circumstance, the Administrative Agent may, in its discretion, but shall not be required (unless required by any other express provision hereof) to, communicate such proposed action or determination to the Lenders prior to taking or making the same, and shall be entitled (subject to any otherwise applicable requirement of Section 10.02(b)), in the absence of any contrary communication received from any Lender within a reasonable period of time specified in such communication from the Administrative Agent, to assume that such proposed action or determination is satisfactory to such Lender. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Company shall have the right, with the consent of the Required Lenders (not to be unreasonably withheld or delayed), to appoint a successor; provided, that if a Default has occurred and is continuing, the Required Lenders, and not the Company, shall have the right, in consultation with the Company, to appoint a such successor. If no successor shall have been so appointed by the Company (or, if applicable, the Required Lenders Lenders) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent maymay (but shall not be obligated to), on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New YorkYork or Toronto or London, as applicable, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB The Chase Manhattan Bank is hereby appointed to act as Administrative Agent and Collateral Agent, and JPMEL is hereby appointed to act as London Agent, in each case on behalf of the Lenders and each the Issuing BankBanks. Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank Bank, hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing BankBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC L/C Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or the applicable Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; (c) pursuant to Section 5.13, request the Parent Borrower to exercise all remedies under the Franchise Agreement (including Governance Remedies); and (cd) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company Borrowers or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, and the Administrative Collateral Agent is are hereby expressly authorized to release execute any Guarantor from and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents. The Borrowers agree that the Administrative Agent may designate prior to the Closing Date any other Lender with the title co-agent and that any such co-agent shall not be obligated to perform any duties in such capacity as a co-agent. Neither the Agents nor any of their respective directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its obligations hereunder and under or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers or any other Loan Party of any of the terms, conditions, covenants or agreements contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents, instruments or agreements. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the event that absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. Neither the Agents nor any of their respective directors, officers, employees or agents shall have any responsibility to the Borrowers or any other Loan Party on account of the failure of or delay in performance or breach by any Lender or any Issuing Bank of any of its obligations hereunder or to any Lender or any Issuing Bank on account of the failure of or delay in performance or breach by any other Lender or Issuing Bank or the Borrowers or any other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the capital stock advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such Guarantor counsel. The Lenders hereby acknowledge that none of the Agents shall be soldunder any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, transferred or otherwise disposed any of the Agents may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders, with the consent of the Parent Borrower (which consent shall not be unreasonably withheld), shall have the right to appoint a Person successor, provided the consent of the Parent Borrower shall not be required if an Event of Default has occurred and is continuing. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, with the consent of the Parent Borrower (which consent shall not be unreasonably withheld), which shall be a bank that is not a Lender and has a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank, provided the Company consent of the Parent Borrower shall not be required if an Event of Default has occurred and is continuing. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 9.05 shall continue in a transaction permitted effect for its benefit in respect of any actions taken or omitted to be taken by Section 6.03it while it was acting as Agent. With respect to any the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its aggregate Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Borrowers or any duties or obligations except those expressly set forth in the other Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred Party and is continuing, (b) no to indemnify and hold harmless each Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that is communicated to may be imposed on, incurred by or obtained by the institution serving asserted against it in its capacity as Agent or any of its Affiliates them in any capacity. No Agent shall be liable for way relating to or arising out of this Agreement or any other Loan Document or any action taken or not taken omitted by it with or any of them under this Agreement or any other Loan Document, to the consent extent the same shall not have been reimbursed by the Borrowers or at the request of the Required Lenders (any other Loan Party, provided that no Lender shall be liable to an Agent or any such other number indemnified person for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or percentage disbursements that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge willful misconduct of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenantsits directors, agreements officers, employees or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agentagents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Neither the Syndication Agent nor the Documentation Agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender Lenders and each the Issuing Bank Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks Lenders all payments of principal of and interest on the Loans, all payments in respect of Loans and the LC Disbursements and all other amounts due to the Lenders and the Issuing Lenders hereunder, and promptly to distribute to each Lender or and Issuing Bank Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting Neither any Agent nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the generality contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the foregoingterms, if all applicable mandatory prepayments under Section 2.10(c) shall have been made conditions, covenants or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, agreements contained in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agentthis Agreement. The Agents shall not have any duties be responsible to the Lenders for the due execution, genuineness, validity, enforceability or obligations except those expressly set forth in the Loan Documentseffectiveness of this Agreement or other instruments or agreements. Without limiting the generality None of the foregoing, (a) no Agent Agents or the Borrowers shall be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, (b) and no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by provision in the Loan Documents that and no course of dealing between the parties hereto shall be deemed to create any fiduciary duty owing to any Agent, any Lender, any Borrower or any Subsidiary, or any of their respective Affiliates, by any party hereto. The Administrative Agent is required to exercise upon receipt of notice shall in writing all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or such other number or percentage of inaction pursuant thereto shall be binding on all the Lenders as shall be necessary under and the circumstances as provided in Section 10.02)Issuing Lenders. The Administrative Agent shall, and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed knowledge to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lendercontrary, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any Lender or Issuing Lender of any of its obligations hereunder or to any Lender or Issuing Lender on account of the failure of or delay in performance or breach by any other Agent, any other Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders and the Issuing Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint from the Lenders a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint from the Lenders a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.5 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. With respect to the Loans made by them and their LC Exposure hereunder, the Agents in their individual capacity and not as Agents shall have the same rights and powers as any other Lender and may exercise the same as though they were not Agents, and the Agents and their affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of their respective Subsidiaries or any Affiliate thereof as if they were not Agents. Each Lender and Issuing Lender agrees (i) to reimburse the Administrative Agent in the amount of its pro rata share (based on its Total Facility Percentage or, after the date on which the Loans shall have been paid in full, based on its Total Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold harmless the Administrative Agent and any of its directors, officers, employees or agents, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement, to the extent the same shall not have been reimbursed by or on behalf of Viacom; provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender and Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. None of the Co-Documentation Agents, the Syndication Agent, the Joint Lead Arrangers, the Joint Bookrunners or any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: New Viacom Corp.
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender Lenders and each the Issuing Bank Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks Lenders all payments of principal of and interest on the Loans, all payments in respect of Loans and the LC Disbursements and all other amounts due to the Lenders and the Issuing Lenders hereunder, and promptly to distribute to each Lender or and Issuing Bank Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting Neither any Agent nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the generality contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the foregoingterms, if all applicable mandatory prepayments under Section 2.10(c) shall have been made conditions, covenants or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, agreements contained in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agentthis Agreement. The Agents shall not have any duties be responsible to the Lenders for the due execution, genuineness, validity, enforceability or obligations except those expressly set forth in the Loan Documentseffectiveness of this Agreement or other instruments or 62 agreements. Without limiting the generality None of the foregoingAgents, (a) no Agent the Borrowers or CBS Operations shall be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, (b) and no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by provision in the Loan Documents that and no course of dealing between the parties hereto shall be deemed to create any fiduciary duty owing to any Agent, any Lender, any Borrower, CBS Operations or any other Subsidiary, or any of their respective Affiliates, by any party hereto. The Administrative Agent is required to exercise upon receipt of notice shall in writing all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or such other number or percentage of inaction pursuant thereto shall be binding on all the Lenders as shall be necessary under and the circumstances as provided in Section 10.02)Issuing Lenders. The Administrative Agent shall, and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed knowledge to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lendercontrary, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any Lender or Issuing Lender of any of its obligations hereunder or to any Lender or Issuing Lender on account of the failure of or delay in performance or breach by any other Agent, any other Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders and the Issuing Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint from the Lenders a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint from the Lenders a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank, which successor shall be acceptable to CBS (such acceptance not to be unreasonably withheld). Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.5 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. With respect to the Loans made by them and their LC Exposure hereunder, the Agents in their individual capacity and not as Agents shall have the same rights and powers as any other Lender and may exercise the same as though they were not Agents, and the Agents and their affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of their respective Subsidiaries or any Affiliate thereof as if they were not Agents. Each Lender agrees (i) to reimburse the Administrative Agent in the amount of its pro rata share (based on its Total Facility Percentage or, after the date on which the Loans shall have been paid in full, based on its Total Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold harmless the Administrative Agent and any of its directors, officers, employees or agents, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement, to the extent the same shall not have been reimbursed by or on behalf of CBS; provided, that no Lender shall be liable to the Administrative Agent or any such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender and Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Neither the Co-Documentation Agents, the Syndication Agent, the Joint Lead Arrangers nor any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (CBS Corp)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, JPMCB Inc. is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and each Issuing BankCiticorp North America, Inc. accepts such appointments. Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents Administrative Agent and the Collateral Agent to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and to promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Agent it has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by Borrower pursuant to this Agreement as received by it. None of the Company Agents nor any of their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the terms, conditions, covenants or agreements contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Party Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or its Related Parties shall have any responsibility to the Loan Parties on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to this Agreement or the other provisions of any Loan Documents as received Document unless it shall be requested in writing to do so by the Administrative AgentRequisite Lenders. Without limiting Subject to the generality appointment and acceptance of a successor Agent as provided below, any Agent may resign at any time by notifying the foregoingLenders, if all applicable mandatory prepayments under Section 2.10(c) the Issuing Bank and Borrower. Upon any such resignation, the Requisite Lenders shall have the right to appoint a successor. If no successor shall have been made or arrangements therefor satisfactory to so appointed by the Administrative Agent Requisite Lenders and shall have been entered intoaccepted such appointment within 30 days af- ter the retiring Agent gives notice of its resignation, then the Administrative retiring Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder may, on behalf of the Lenders and under the other Loan DocumentsIssuing Bank, in the event that all the capital stock of such Guarantor appoint a successor Agent which shall be solda bank with an office in New York, transferred New York, having a combined capital and surplus of at least $500,000,000 or otherwise disposed of to a Person that is not an Affiliate of any such bank. Upon the Company acceptance of any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue in a transaction permitted effect for its benefit in respect of any actions taken or omitted to be taken by Section 6.03it while it was acting as an Agent. With respect to any the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, none of CGMI, as Lead Arranger, nor Bank of America, N.A., CIBC World Markets Corp., Suntrust Bank and UBS Securities LLC, as Co-Syndication Agents in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative AgentAgent on behalf of the Lenders and Issuing Banks, and JPMEL JPME is hereby appointed to act as London AgentAgent on behalf of the Lenders, JPMorgan Chase Bank, N.A. Toronto Branch is hereby appointed to act as Canadian Agent on behalf of the Lenders and each Issuing BankJPMA is hereby appointed to act as Australian Agent on behalf of the Lenders. Each of the Lenders, each assignee of any such Lender Lenders and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not Any bank serving as Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an such Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Company, any Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agentsuch Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the Company Company, any Borrower or any of its Subsidiaries Subsidiary that is communicated to or obtained by the institution bank serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own bad faith, gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company a Borrower or a Lender, and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinin any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Companyany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of each Agent the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, right (in consultation with, and with the consent of, the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent maymay (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the an Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agent or Documentation Agent in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Kellogg Co)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Each bank serving as an Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the any Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the Loan other Credit Documents. Without limiting the generality of the foregoing, (a) no the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Loan other Credit Documents that the Administrative Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of or, if so specified by this Agreement, all the Lenders as shall be necessary under the circumstances as provided in Section 10.02), Lenders) and (c) except as expressly set forth herein and in the Loan other Credit Documents, no the Administrative Agent shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the any Company or any of its Subsidiaries Affiliates that is communicated to or obtained by the institution bank serving as Administrative Agent or any of its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, if so specified by this Agreement, all the Lenders, or such other number or percentage of as the Lenders as Administrative Agent shall believe in good faith shall be necessary necessary, under the circumstances as provided in Article VII and Section 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Company Borrower, a Lender or a Lenderan Issuing Bank, and no the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any Loan other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder under any Credit Document or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein in the Credit Documents or thereinthe occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the a proper Person. Each An initial list of the proper Persons with respect to the Borrower appears on Schedule 8. Schedule 8 shall not be altered except in writing by a Person appearing thereon (or by a successor to such Person occupying the equivalent office). The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereonthereon so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 in all material respects (it being understood that oral notices of borrowing will be confirmed in writing by the Borrower in accordance with Section 2.03). Each In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the CompanyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by such the Administrative Agent. Each The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the CompanyBorrower, to appoint a successorsuccessor which, so long as no Event of Default is continuing, shall be reasonably acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunderhereunder or under the other Credit Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor; provided that the predecessor Administrative Agent shall pay the unearned portion of any fees paid in advance to either the successor Administrative Agent or the Borrower. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. Any resignation by Bank of America, N.A. as Administrative Agent pursuant to this Article VIII shall also constitute its resignation as an Issuing Bank and Swingline Lender. Upon the acceptance of a successor’s appointment as Issuing Bank or Swingline Lender, (a) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Credit Documents, and (b) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their Commitments in effect (or at any time after the Commitments have terminated, their Revolving Credit Exposures) on the date on which indemnification is sought under this Article VIII (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with their Commitments (or, if the Commitments have terminated earlier, their Revolving Credit Exposures) immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent’s gross negligence or willful misconduct. The agreements in this paragraph shall survive the payment of the Loans and all other amounts payable hereunder. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Co-Syndication Agents and Co-Documentation Agents shall not have any duties or responsibilities under any Credit Document in their capacity as such.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB Chase and CSFB are hereby appointed to act as Co-Administrative Agents and Chase is hereby appointed to act as Administrative Payment Agent, and JPMEL is hereby appointed to act as London Agent, on behalf of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lenders hereby irrevocably authorizes the Co-Administrative Agents and the Payment Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Co-Administrative Agents and the Payment Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Any bank serving as Co-Administrative Agent and, to the extent expressly provided herein, the London or Payment Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an such Co-Administrative Agent or Payment Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or Borrowers, any Subsidiary or other Affiliate thereof as if it were not an Agentsuch Co- Administrative Agent or Payment Agent hereunder. The Co-Administrative Agents and the Payment Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Co-Administrative Agent or Payment Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Co- Administrative Agent or Payment Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the such Co- Administrative Agent or Payment Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Co-Administrative Agent or Payment Agent shall have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries Subsidiary that is communicated to or obtained by the institution bank serving as Co-Administrative Agent or Payment Agent or any of its Affiliates in any capacity. No Co- Administrative Agent or Payment Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Co-Administrative Agent or Payment Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Co-Administrative Agent or Payment Agent by the Company Borrowers or a Lender, and no such Co-Administrative Agent or Payment Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinin any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Co-Administrative Agent or Payment Agent. Each Co-Administrative Agent or Payment Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Co-Administrative Agent or Payment Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Co-Administrative Agent or Payment Agent may consult with legal counsel (who may be counsel for the CompanyBorrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Co-Administrative Agent or Payment Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-sub- agents appointed by such Co-Administrative Agent or Payment Agent. Each Co- Administrative Agent or Payment Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of each the Co-Administrative Agents or Payment Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Co-Administrative Agent or Payment Agent. Subject to the appointment and acceptance of a successor Co-Administrative Agent or Payment Agent as provided in this paragraph, any Co-Administrative Agent or the Payment Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (f) or (g) of Article VII) the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Co-Administrative Agent or Payment Agent gives notice of its resignation, then the retiring Co- Administrative Agent mayor Payment Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (f) or (g) of Article VII), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Co-Administrative Agent or Payment Agent shall so request, designate and approve a successor Co- Administrative Agent or Payment Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Co-Administrative Agent or Payment Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Co-Administrative Agent or Payment Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Co-Administrative Agent or Payment Agent, and the retiring Co-Administrative Agent or Payment Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Co-Administrative Agent or the Payment Agent shall be the same as those payable to its predecessor unless otherwise agreed among the Borrowers and such successor. After a Co-Administrative Agent's or the Payment Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Co- Administrative Agent or Payment Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Co-Administrative Agent or Payment Agent. Each Lender acknowledges that it has, independently and without reliance upon the Co-Administrative Agents or the Payment Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Co- Administrative Agents or the Payment Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agent or Co-Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (NNG Inc)
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, JPMCB Chase is hereby appointed to act as Administrative Agent, Agent and JPMEL Documentary Agent and Hibernia is hereby appointed to act as London Agent, on behalf Co-Agent for the Lenders under this Agreement. None of the Lenders and each Issuing BankAgents or Co- Agent shall have any duties or responsibilities with respect hereto except those expressly set forth herein or in the other Loan Documents. Each of the Lenders, each assignee of any such Lender and each Issuing Bank its successors and permitted assigns hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunderhereunder or as directed by the Required Lenders; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative The Co-Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under assist the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Administrative Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated requested by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Administrative Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this AgreementSECTION 8.01. The Agents. Citicorp North America, JPMCB Inc. is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to any of the Company Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative such Agent. Without limiting the generality None of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release Agents nor any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor their Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not omitted to be taken by it with any of them except to the consent extent finally judicially determined to have resulted from its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Agent also may rely upon None of the Agents nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right, in consultation with the Company, right to appoint a successor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500.0 million or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's resignation hereunder, the provisions of this Article and Section 10.03 10.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI and Harris, as Joint Lead Arrangers and Joint Bookrunners, nor Harris, as Xxxxxcation Agent, nor CIBC and Rabobank, as Co-Documentatxxx Xxents, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Seminis Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB The Chase Manhattan Bank is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lender, hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to any of the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrowers pursuant to this Agreement or the other Loan Documents as received by the Administrative such Agent. Without limiting the generality Neither Agent nor any of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Neither any Agent also may rely upon nor any statement made of its Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder 112 and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that neither Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 10.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with CCSC or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents either Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents either Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Each Lender hereby authorizes the Administrative Agent to enter into the Intercreditor Agreement on behalf of such Lender and to exercise its rights and perform its obligations thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent, London Agent and JPMEL is hereby appointed to act as London Agent, Canadian Agent on behalf of the Lenders. Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent other Agents are hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any of the Company Borrowers or any Subsidiary of their Subsidiaries or other Affiliate Affiliates thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to any of the Company Borrowers or any of its their Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Borrower (in which case such Agent shall give written notice to each other Lender), and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Companyany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Companyconsent of the Company (not to be unreasonably withheld and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. In addition, if any Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and such Agent, to remove such Agent in its capacity as such and, with the consent of the Company (not to be unreasonably withheld and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. If (a) no successor to a retiring Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bankbank or (b) no successor to a removed Agent shall have been so appointed and shall have accepted such appointment within 30 days following the issuance of a notice of removal, the removal shall become effective on such 30th day and on such date the Required Lenders shall succeed as Agent to such removed Agent. Upon the acceptance of 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 removed Agent, as the case may be, and the such retiring or removed Agent shall be discharged from its duties and obligations hereunder. After the Agent's ’s resignation or removal, as the case may be, hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring or removed Agent, as the case may be. its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless each Agent and any of its Related Parties, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Borrower; provided that no Lender shall be liable to an Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of such Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. None of the Lenders identified on the facing page or signature pages of this Agreement or elsewhere herein as a “syndication agent” or “documentation agent” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Each bank serving as an Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the any Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the Loan other Credit Documents. Without limiting the generality of the foregoing, (a) no the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Loan other Credit Documents that the Administrative Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of or, if so specified by this Agreement, all the Lenders as shall be necessary under the circumstances as provided in Section 10.02), Lenders) and (c) except as expressly set forth herein and in the Loan other Credit Documents, no the Administrative Agent shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the any Company or any of its Subsidiaries Affiliates that is communicated to or obtained by the institution bank serving as Administrative Agent or any of its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, if so specified by this Agreement, all the Lenders, or such other number or percentage of as the Lenders as Administrative Agent shall believe in good faith shall be necessary necessary, under the circumstances as provided in Article VII and Section 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Company Borrower, a Lender or a Lenderan Issuing Bank, and no the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any Loan other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder under any Credit Document or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein in the Credit Documents or thereinthe occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the a proper Person. Each An initial list of the proper Persons with respect to the Borrower appears on Schedule 8. Schedule 8 shall not be altered except in writing by a Person appearing thereon (or by a successor to such Person occupying the equivalent office). The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereonthereon so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 in all material respects (it being understood that oral notices of borrowing will be confirmed in writing by the Borrower in accordance with Section 2.03). Each In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the CompanyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by such the Administrative Agent. Each The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the CompanyBorrower, to appoint a successorsuccessor which, so long as no Event of Default is continuing, shall be reasonably acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunderhereunder or under the other Credit Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor; provided that the predecessor Administrative Agent shall pay the unearned portion of any fees paid in advance to either the successor Administrative Agent or the Borrower. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their Commitments in effect (or at any time after the Commitments have terminated, their Revolving Credit Exposures) on the date on which indemnification is sought under this Article VIII (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with their Commitments (or, if the Commitments have terminated earlier, their Revolving Credit Exposures) immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent’s gross negligence or willful misconduct. The agreements in this paragraph shall survive the payment of the Loans and all other amounts payable hereunder. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Co-Syndication Agents, Joint Lead Arrangers, Joint Bookrunners and Co-Documentation Agents shall not have any duties or responsibilities under any Credit Document in their capacity as such. None of the Co-Syndication Agents, Joint Lead Arrangers, Joint Bookrunners and Co-Documentation Agents shall have or be deemed to have any fiduciary relationship with any Lender.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Paying Agent on behalf of the Lenders and each Issuing BankBanks, and JPMCB and Bank of America, N.A. are hereby appointed to act as Administrative Agents on behalf of the Lenders and Issuing Banks. Each of the Lenders, Lenders and Issuing Banks hereby authorizes each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents Agent to take such actions on behalf of such Lender or assignee or such Issuing Bank Bank, as the case may be, and to exercise such powers as are specifically delegated to the Agents such Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Paying Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or any Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Paying Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Paying Agent. Without limiting It is understood that the generality Agents shall not have any duties or obligations except those expressly set forth herein. Neither any Agent nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower of any of the foregoingterms, if conditions, covenants or agreements contained in this Agreement. No Agent shall be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. Each Agent may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all applicable mandatory prepayments purposes hereof until, in the case of the Paying Agent, the Paying Agent shall have received notice from such Lender or, in the case of any other Agent, such Agent shall have received notice from the Paying Agent that it received such notice from such Lender, in each case, given as provided herein, of the transfer thereof. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall 50 be binding on all the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. Neither any Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrower of any of their respective obligations hereunder or in connection herewith. Each Agent may execute any and all duties hereunder by or through agents appointed in good faith by such Agent or employees of any thereof and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that each Agent shall be under Section 2.10(c) no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Paying Agent as provided below, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Borrower. Upon any such resignation of the Paying Agent, the Required Lenders shall have the right to appoint a successor Paying Agent acceptable to the Borrower. If no successor shall have been made or arrangements therefor satisfactory to so appointed by the Administrative Agent Required Lenders and shall have been entered intoaccepted such appointment within 30 days after the retiring Paying Agent gives notice of its resignation, then the Administrative retiring Paying Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder may, on behalf of the Lenders and under the other Loan DocumentsIssuing Banks, in the event that all the capital stock of such Guarantor appoint a successor Paying Agent which shall be solda bank with an office in New York, transferred New York, having a combined capital and surplus of at least $500,000,000 or otherwise disposed of to a Person that is not an Affiliate of any such bank. Upon the Company acceptance of any appointment as a Paying Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent and the retiring Paying Agent shall be discharged from its duties and obligations hereunder. After any Agent's resignation hereunder, the provisions of this Article and Section 9.05 shall continue in a transaction permitted effect for its benefit in respect of any actions taken or omitted to be taken by Section 6.03it while it was acting as an Agent. With respect to any the Loans made by it hereunder, each any Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents each Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents Each Lender agrees (i) to reimburse the Paying Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder) of any expenses incurred for the benefit of the Lenders by such Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated been reimbursed by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02)Borrower, and (cii) except as expressly set forth to indemnify and hold harmless each Agent and any of its directors, officers, employees or agents, on demand, in the Loan Documentsamount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as an Agent or any of them in any way relating to or arising out of this Agreement or any action taken or omitted by it or any of them under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that no Agent shall have any duty to disclose, and no Agent Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the failure to disclose, any information relating to the Company gross negligence or any willful misconduct of its Subsidiaries that is communicated to or obtained by the institution serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken directors, officers, employees or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agentagents. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or related agreement or any document furnished hereunder or thereunder. Each of the Borrower and its Subsidiaries and the Lenders acknowledges that Merrill Lynch Capital Corporation and Citibank, N.A. have no responsxxxxxxxex xx obligations pursuant to this Agreement in their capacity as syndication agents.
Appears in 1 contract
Samples: Credit Facility Agreement (At&t Wireless Services Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender Lenders and each the Issuing Bank Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of Loans and the LC Disbursements and all other amounts due to the Lenders and Issuing Lenders hereunder, and promptly to distribute to each Lender or and Issuing Bank Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality Neither any Agent nor any of the foregoingits directors, if all applicable mandatory prepayments under Section 2.10(c) shall have been made officers, employees or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent agents shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the covenantsterms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other terms instruments or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or documentagreements. The Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentor, other than to confirm receipt of items when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. The Administrative Agent shall, in the absence of knowledge to be delivered to such Agent. Each Agent shall the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any Lender or Issuing Lender of any of its obligations hereunder or to any Lender or Issuing Lender on account of the failure of or delay in performance or breach by any other Agent, any other Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders and the Issuing Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.Issuing
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, authority (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; , (b) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; hereunder and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality Neither any Agent nor any of the foregoingits directors, if all applicable mandatory prepayments under Section 2.10(c) shall have been made officers, employees or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent agents shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the covenantsterms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other terms instruments or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or documentagreements. The Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentor, other than to confirm receipt of items when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. The Administrative Agent shall, in the absence of knowledge to be delivered to such Agent. Each Agent shall the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Agent, any other Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint from the Lenders a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint from the Lenders a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 10.03 9.5 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. With respect to the Loans made by them hereunder, the Agents in their individual capacity and not as Agents shall have the same rights and powers as any other Lender and may exercise the same as though they were not Agents, and the Agents and their affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of their respective Subsidiaries or any Affiliate thereof as if they were not Agents. Each Lender agrees (i) to reimburse the Administrative Agent in the amount of its PRO RATA share (based on its Total Facility Percentage or, after the date on which the Loans shall have been paid in full, based on its Total Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold harmless the Administrative Agent and any of its directors, officers, employees or agents, in the amount of such PRO RATA share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement, to the extent the same shall not have been reimbursed by or on behalf of Viacom; PROVIDED, that no Lender shall be liable to the Administrative Agent or any such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Neither the Syndication Agent, the Co-Documentation Agents, the Joint Lead Arrangers nor any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent, London Agent and JPMEL is hereby appointed to act as London Agent, Canadian Agent on behalf of the Lenders. Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent other Agents are hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any of the Company Borrowers or any Subsidiary of their Subsidiaries or other Affiliate Affiliates thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any 66 discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to any of the Company Borrowers or any of its their Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Borrower (in which case such Agent shall give written notice to each other Lender), and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Companyany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless each Agent and any of its Related Parties, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Borrower; provided that no Lender shall be liable to an Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of such Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. None of the Lenders identified on the facing page or signature pages of this Agreement or elsewhere herein as a “co-syndication agent” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each the Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement to serve as administrative agent and collateral agent hereunder and under the other Loan Documents, and authorizes the Agents such entity to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Issuing Banks Agent in the heading of this Agreement to serve as the issuing banks agent hereunder and under the other Loan Documents and authorizes such entity to take such actions and to exercise such powers as are delegated to the Issuing Banks Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and or the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not an the Administrative Agent or the Issuing Banks Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agentthe Administrative Agent or the Issuing Banks Agent hereunder. The Agents Administrative Agent and the Issuing Banks Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no neither the Administrative Agent nor the Issuing Banks Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no neither the Administrative Agent nor the Issuing Banks Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02)9.02) or that the Issuing Banks Agent is required to exercise, and (c) except as expressly set forth in the Loan Documents, no neither the Administrative Agent nor the Issuing Banks Agent shall have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its the Subsidiaries that is communicated to or obtained by the institution entity serving as Administrative Agent, the Issuing Banks Agent or any of its their Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Issuing Banks Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Issuing Banks or in the absence of its own gross negligence or willful misconduct. Neither the Administrative Agent nor the Issuing Banks Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent or the Issuing Banks Agent by the Company Borrower, a Lender or a Lenderan Issuing Bank, and no neither the Administrative Agent nor the Issuing Banks Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinin any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or the Issuing Banks Agent, as applicable. Without limiting the foregoing, the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into whether any Lender is at any time an Affiliated Assignee and, unless the Administrative Agent shall have received, pursuant to the covenants, if any, of such AgentLender set forth in the Assignment and Assumption pursuant to which such Lender shall have purchased and assumed any Loan or Commitment hereunder, prior written notice from any Lender that such Lender is an Affiliated Assignee, the Administrative Agent may deal with such Lender (including for purposes of determining the consent, approval, vote or other similar action of the Lenders or the Lenders of any Class), and shall not incur any liability for so doing, as if such Lender were not an Affiliated Assignee. Each The Administrative Agent and the Issuing Banks Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Without limiting the foregoing, the Issuing Banks Agent shall not be responsible for or have any duty to ascertain or inquire into whether any Viacom Beneficiary Cash Collateral Release shall have occurred (or into the amount thereof), and may determine the existence of any Viacom XX Xxxx Collateral Excess solely on the basis of the notices provided to the Issuing Banks Agent by the Borrower pursuant to Section 5.02(e) (and shall incur no liability for any errors in such determination arising from the failure by the Borrower to deliver any such notice). The Administrative Agent and Issuing Banks Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each of the Administrative Agent and the Issuing Banks Agent may consult with legal counsel (who may be counsel for the CompanyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Administrative Agent and the Issuing Banks Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such it. The Administrative Agent. Each , the Issuing Banks Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each the Administrative Agent, the Issuing Banks Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Administrative Agent or Issuing Banks Agent, as applicable. Without limiting the foregoing, the Issuing Banks Agent may appoint any Issuing Bank as a sub-agent of the Issuing Banks Agent for the purpose of holding any XX Xxxx Collateral. Each Issuing Bank agrees that, notwithstanding any such appointment of an Issuing Bank as a sub-agent of the Issuing Banks Agent, the Issuing Banks Agent shall retain exclusive dominion and control, including the exclusive right of withdrawal, over the XX Xxxx Collateral Account (which term, for purposes of this paragraph and each other provision hereof where the context so requires (including Sections 2.06(h)(vi) and 2.06(h)(vii)), shall include any deposit or other account in which any such sub-agent holds any XX Xxxx Collateral) and the XX Xxxx Collateral (which term, for the avoidance of doubt, shall include any portion thereof held by any sub-agent of the Issuing Banks Agent), except to the extent such dominion and control shall have been delegated to such Issuing Bank as a sub-agent of the Issuing Banks Agent. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the CompanyBorrower’s consent (which consent shall not be unreasonably withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Subject to the appointment and acceptance of a successor to the Issuing Banks Agent as provided in this paragraph, the Issuing Banks Agent may resign at any time by notifying the Administrative Agent, the Issuing Banks and the Borrower. Upon any such resignation, the Issuing Banks shall have the right, with the Borrower’s consent (which consent shall not be unreasonably withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the Issuing Banks and shall have accepted such appointment within 30 days after the retiring Issuing Banks Agent gives notice of its resignation, then the retiring Issuing Banks Agent may, on behalf of the Issuing Banks, appoint a successor Issuing Banks Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Issuing Banks Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Issuing Banks Agent, and the retiring Issuing Banks Agent shall be discharged from its duties and obligations hereunder. After the Issuing Banks Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Issuing Banks Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Issuing Banks Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Agents Administrative Agent, the Issuing Banks Agent, any other Lender or any other Lender Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Agents Administrative Agent, the Issuing Banks Agent, any other Lender or any other Lender Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The banks (or Affiliates thereof) identified in this Agreement as a “documentation agent” or “syndication agent” shall not have any right, power, liability, responsibility or duty under this Agreement other than those applicable to all banks herein.
Appears in 1 contract
Samples: Credit Agreement (Blockbuster Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB Chase is hereby appointed to act as Administrative Agent, and JPMEL CMIL is hereby appointed to act as London Agent, and such party as may be named pursuant to Section 9.16 is hereby appointed to act as Australian Agent, on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates in their respective individual capacities may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company a Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any the Loan DocumentDocuments, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any the Loan Document Documents or any other agreement, instrument or document, document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein or in any other Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Companyany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 9.03 shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Co-Syndication Agents or Co-Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Valspar Corp)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Each bank serving as an Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the any Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the Loan other Credit Documents. Without limiting the generality of the foregoing, (a) no the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Loan other Credit Documents that the Administrative Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of or, if so specified by this Agreement, all the Lenders as shall be necessary under the circumstances as provided in Section 10.02), Lenders) and (c) except as expressly set forth herein and in the Loan other Credit Documents, no the Administrative Agent shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the any Company or any of its Subsidiaries Affiliates that is communicated to or obtained by the institution bank serving as Administrative Agent or any of its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, if so specified by this Agreement, all the Lenders, or such other number or percentage of as the Lenders as Administrative Agent shall believe in good faith shall be necessary necessary, under the circumstances as provided in Article VII and Section 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Company Borrower or a Lender, and no the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any Loan other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder under any Credit Document or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein in the Credit Documents or thereinthe occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the a proper Person. Each An initial list of the proper Persons with respect to the Borrower appears on Schedule 8. Schedule 8 shall not be altered except in writing by a Person appearing thereon (or by a successor to such Person occupying the equivalent office). The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereonthereon so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 in all material respects (it being understood that oral notices of borrowing will be confirmed in writing by the Borrower in accordance with Section 2.03). Each In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the CompanyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by such the Administrative Agent. Each The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the CompanyBorrower, to appoint a successorsuccessor which, so long as no Event of Default is continuing, shall be reasonably acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunderhereunder or under the other Credit Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor; provided that the predecessor Administrative Agent shall pay the unearned portion of any fees paid in advance to either the successor Administrative Agent or the Borrower. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their Applicable Percentage on the date on which indemnification is sought under this Article VIII (or, if indemnification is sought after the date upon which the Loans shall have been paid in full, ratably in accordance with their Applicable Percentage immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent’s gross negligence or willful misconduct. The agreements in this paragraph shall survive the payment of the Loans and all other amounts payable hereunder. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Co-Syndication Agents and Co-Documentation Agents shall not have any duties or responsibilities under any Credit Document in their capacity as such.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender Lenders and each the Issuing Bank Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks Lenders all payments of principal of and interest on the Loans, all payments in respect of Loans and the LC Disbursements and all other amounts due to the Lenders and the Issuing Lenders hereunder, and promptly to distribute to each Lender or and Issuing Bank Lender its proper share of each payment so received; , (b) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; hereunder and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting Neither any Agent nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the generality contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the foregoingterms, if all applicable mandatory prepayments under Section 2.10(c) shall have been made conditions, covenants or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, agreements contained in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agentthis Agreement. The Agents shall not have any duties be responsible to the Lenders for the due execution, genuineness, validity, enforceability or obligations except those expressly set forth in the Loan Documentseffectiveness of this Agreement or other instruments or agreements. Without limiting the generality None of the foregoing, (a) no Agent Agents or the Borrowers shall be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, (b) and no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by provision in the Loan Documents that and no course of dealing between the parties hereto shall be deemed to create any fiduciary duty owing to any Agent, any Lender, any Borrower or any Subsidiary, or any of their respective Affiliates, by any party hereto. The Administrative Agent is required to exercise upon receipt of notice shall in writing all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or such other number or percentage of inaction pursuant thereto shall be binding on all the Lenders as shall be necessary under and the circumstances as provided in Section 10.02)Issuing Lenders. The Administrative Agent shall, and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed knowledge to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lendercontrary, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any Lender or Issuing Lender of any of its obligations hereunder or to any Lender or Issuing Lender on account of the failure of or delay in performance or breach [[3890129]] 77 by any other Agent, any other Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders and the Issuing Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint from the Lenders a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint from the Lenders a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.5 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. With respect to the Loans made by them and their LC Exposure hereunder, the Agents in their individual capacity and not as Agents shall have the same rights and powers as any other Lender and may exercise the same as though they were not Agents, and the Agents and their affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of their respective Subsidiaries or any Affiliate thereof as if they were not Agents. Each Lender and Issuing Lender agrees (i) to reimburse the Administrative Agent in the amount of its pro rata share (based on its Total Facility Percentage or, after the date on which the Loans shall have been paid in full, based on its Total Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold harmless the Administrative Agent and any of its directors, officers, employees or agents, [[3890129]] in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement, to the extent the same shall not have been reimbursed by or on behalf of Viacom; provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender and Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. None of the Documentation Agents, the Syndication Agents, the Joint Lead Arrangers, the Joint Bookrunners or any managing agent shall have any duties, liabilities or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, authority (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; , (b) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; hereunder and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality Neither any Agent nor any of the foregoingits directors, if all applicable mandatory prepayments under Section 2.10(c) shall have been made officers, employees or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent agents shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the covenantsterms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other terms instruments or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or documentagreements. The Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentor, other than to confirm receipt of items when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. The Administrative Agent shall, in the absence of knowledge to be delivered to such Agent. Each Agent shall the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Agent, any other Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint from the Lenders a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint from the Lenders a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 10.03 9.5 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. With respect to the Loans made by them hereunder, the Agents in their individual capacity and not as Agents shall have the same rights and powers as any other Lender and may exercise the same as though they were not Agents, and the Agents and their affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of their respective Subsidiaries or any Affiliate thereof as if they were not Agents. Each Lender agrees (i) to reimburse the Administrative Agent in the amount of its pro rata share (based on its Total Facility Percentage or, after the date on which the Loans shall have been paid in full, based on its Total Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold harmless the Administrative Agent and any of its directors, officers, employees or agents, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement, to the extent the same shall not have been reimbursed by or on behalf of Viacom; provided, that no Lender shall be liable to the Administrative Agent or any such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Neither the Syndication Agent, the Co-Documentation Agents, the Joint Lead Arrangers nor any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Day Credit Agreement (Viacom Inc)
The Agents. In order to expedite As used in this Section 10, the transactions contemplated by this Agreement, JPMCB is hereby appointed to act term “Agents” or “Agent” shall mean each of the Agents as well as the Administrative Agent, acting in such respective capacities. The rights and JPMEL is hereby appointed to act as London Agent, on behalf relationships of each Agent and the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated Banks shall be subject to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental theretoprovisions set forth in this Section 10. The Administrative Agent and, is authorized to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice take such action on behalf of each of the Lenders Banks and to exercise all such powers as are hereunder and in related documents delegated to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection Agent, together with its agency hereunder; and (c) such powers as are reasonably incident thereto, provided that no duties or responsibilities not expressly assumed herein or therein shall be implied to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received have been assumed by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to The relationship between the Administrative Agent shall have been entered intoand each of the Banks is that of an independent contractor. The use of the term “Administrative Agent” is for convenience only and is used to describe, as a form of convention, the independent contractual relationship between the Administrative Agent is hereby expressly authorized and each of the Banks. Nothing contained in this Agreement shall be construed to release create an agency, trust or other fiduciary relationship between the Administrative Agent and any Guarantor from of the Banks. The Administrative Agent may exercise its obligations hereunder powers and execute its duties by or through employees or agents and shall be entitled to take, and to rely on, advice of counsel concerning all matters pertaining to its rights and duties under this Agreement. The Administrative Agent may utilize the other Loan Documents, in the event that all the capital stock services of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of Persons as the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Administrative Agent in its individual capacity sole discretion may reasonably determine, and not as Agent all reasonable fees and expenses of such Persons shall have be paid by the same rights and powers as Borrower. None of the Agents nor any of their respective shareholders, directors, officers or employees nor any other Lender and may exercise the same as though it were not an AgentPerson assisting them in their duties nor any agent or employee thereof, and the Agents and their Affiliates may accept deposits fromshall be liable for any waiver, lend money to and generally engage in any kind of business with the Company consent or approval given or any Subsidiary action taken, or omitted to be taken, in good faith by it or them hereunder, or in connection herewith, or be responsible for the consequences of any oversight or error of judgment whatsoever, except that each Agent or such other Affiliate thereof Person, as if it were not an Agentthe case may be, may be liable for losses due to its willful misconduct or gross negligence. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for the execution or have validity or enforceability of this Agreement or any duty instrument at any time constituting, or intended to constitute, collateral security for the Obligations, or for the value of any such collateral security or for the validity, enforceability or collectability of any such amounts owing with respect hereto, or for any recitals or statements, warranties or representations herein or made in any certificate or instrument hereafter furnished by or on behalf of the Borrower, or be bound to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) as to the performance or observance of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or thereinin any instrument at any time constituting, (iv) or intended to constitute, collateral security for the validityObligations. No Agent shall be bound to ascertain whether any notice, enforceabilityconsent, effectiveness waiver or genuineness of any Loan Document request delivered to it by the Borrower or any Bank or its assignee shall have been duly authorized or is true, accurate and complete. No Agent has made or now makes any representations or warranties, express or implied, nor does either Agent assume any liability to the Banks with respect to the creditworthiness or financial condition of the Borrower or any of its Subsidiaries. Except for notices, reports and other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items documents and information expressly required to be delivered furnished to the Banks by the Administrative Agent hereunder, no Agent shall have any duty or responsibility to provide any Bank with any credit or other information concerning any Person which may come into the possession of such AgentAgent or any of its affiliates. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender Bank acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender Bank, and based on upon such information and documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender If in the opinion of the Administrative Agent the distribution of any amount received in its capacity as Administrative Agent hereunder might involve it in a violation of law, it may refrain from making such distribution until its right to make such distribution shall have been adjudicated by a court of competent jurisdiction. If a court of competent jurisdiction shall adjudge that any amount received and distributed by the Administrative Agent is to be repaid, each Person to whom any such distribution shall have been made shall either repay to the Administrative Agent its proportionate share of the amount so adjudged to be repaid or shall pay over the same in such manner and to such Persons as shall be determined by such court. With respect to obligations of the Borrower hereunder, a payment to the Administrative Agent for the account of the Banks shall be deemed to be a payment to the Banks. The Banks agree, ratably in accordance with their respective Commitment Percentages, to indemnify and hold harmless the Administrative Agent and its affiliates from and against any and all claims, actions and suits (whether groundless or otherwise), losses, damages, costs, expenses (including any expenses for which the Administrative Agent and its affiliates has not been reimbursed by the Borrower as required by Section 11 hereof), and liabilities of every nature and character arising out of or related to this Agreement or the transactions contemplated or evidenced hereby, or the Administrative Agent’s or its affiliates’ actions taken hereunder, except to the extent that any of the same shall be directly caused by the Administrative Agent’s or its affiliates’ willful misconduct or gross negligence. In their respective individual capacities, each of the Banks serving as an Agent shall have the same obligations and the same rights, powers and privileges with respect to their Commitments and the Loans made by them hereunder as they would have were they not also acknowledges acting as Agents. None of the Agents, other than the Administrative Agent, shall have any right, power, obligation, liability, responsibility or duty under this Agreement in such capacity, other than those applicable to all Banks as Banks. Without limiting any of the foregoing provisions of this Section 10, the Banks and each Agent hereby agree that the Administrative Agent shall not be obliged to make available to any Person any sum which the Administrative Agent is expecting to receive for the account of that Person until the Administrative Agent has determined that it willhas received that sum. The Administrative Agent may, independently however, disburse funds prior to determining that the sums which the Administrative Agent expects to receive have been finally and without reliance upon unconditionally paid to the Agents or Administrative Agent, if the Administrative Agent wishes to do so. If and to the extent that the Administrative Agent does disburse funds and it later becomes apparent that the Administrative Agent did not then receive a payment in an amount equal to the sum paid out, then any other Lender and based Person to whom the Administrative Agent made the funds available shall, on such documents and information as it shall demand from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.the Administrative Agent:
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB (i) GSCP is hereby appointed to act as Administrative the Syndication Agent, and JPMEL (ii) Chase is hereby appointed to act as London Agent, the Administrative Agent and the Collateral Agent on behalf of the Lenders and each Issuing Bankthe Fronting Bank (for purposes of this Article VIII, the Syndication Agent, the Administrative Agent and the Collateral Agent are referred to collectively as the "Agents"). Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing the Fronting Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing the Fronting Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks Fronting Bank all payments of principal of and interest on the Loans, all payments in respect of LC Letter of Credit Disbursements and all other amounts due to the Lenders and the Fronting Bank hereunder, and promptly to distribute to each Lender or Issuing the Fronting Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is Agents are hereby expressly authorized to release execute any Guarantor from its obligations hereunder and under all documents (including releases) with respect to the other Loan Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents, in . In the event that all any party other than the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, Lenders and the Agents and their Affiliates may accept deposits from, lend money to and generally engage shall participate in any kind of business with the Company all or any Subsidiary or other Affiliate thereof as if it were not an portion of the Collateral pursuant to the Security Documents, all rights and remedies in respect of such Collateral shall be controlled by the Collateral Agent. The Agents shall not have Syndication Agent, without consent of or notice to any duties party hereto, may assign any and all of its rights or obligations except those expressly set forth in the Loan Documentshereunder to any of its Affiliates. Without limiting the generality As of the foregoingClosing Date, (a) no Agent all the obligations of the Syndication Agent, shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent terminate. Chase Securities Inc. shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage no obligations under this Agreement. None of the Lenders as shall be necessary under the circumstances as provided in Section 10.02)Agents nor any of their respective directors, and (c) except as expressly set forth in the Loan Documentsofficers, no Agent shall have any duty to disclose, and no Agent employees or agents shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower or any other Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to Loan Documents or other instruments or agreements. The Agents shall in all cases be delivered to fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such Agentinstructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Neither the Agents nor any of their respective directors, officers, employees or agents shall have any responsibility to the Borrower or any other Loan Party on account of the failure of or delay in performance or breach by any Lender or the Fronting Bank of any of its obligations hereunder or to any Lender or the Fronting Bank on account of the failure of or delay in performance or breach by any other Lender or the Fronting Bank or the Borrower or any other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent also of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions Lenders hereby acknowledge that none of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which Agents shall be a bank with an office in New York, New York, or an Affiliate of under any such bank. Upon the acceptance of its appointment as Agent hereunder duty to take any discretionary action permitted to be taken by a successor, such successor shall succeed it pursuant to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article Agreement unless it shall be requested in writing to do so by the Required Lenders. The Lenders further acknowledge and Section 10.03 agree that so long as an Agent shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of make any actions taken or omitted determination to be taken made by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents hereunder or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or in good faith, such Agent shall have no liability in respect of such determination to any document furnished hereunder or thereunderperson.
Appears in 1 contract
Samples: Credit Agreement (Volume Services America Holdings Inc)
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, JPMCB Chemical is hereby appointed to act as Administrative Agent, FTX Collateral Agent and JPMEL FRP Collateral Agent for the Banks under this Agreement and the Security Agreements and Chase is hereby appointed to act as London Agent, on behalf the Documentary Agent for the Banks under this Agreement. None of the Lenders Agents shall have any duties or responsibilities with respect hereto except those expressly set forth herein or in the other Loan Documents. Each Bank, and each Issuing Bank. Each of the Lenders, each assignee subsequent holder of any such Lender and each Issuing Bank Promissory Note by its acceptance thereof, hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders Banks hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders Banks to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunderhereunder or as directed by the Required Banks; and (c) to distribute to each Lender Bank copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrowers pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is Collateral Agents are hereby expressly authorized to release execute any Guarantor from its obligations hereunder and all documents (including releases) with respect to the collateral under the other Loan Documents, in Security Agreements and the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate rights of the Company in a transaction permitted by Section 6.03. With secured parties with respect to any Loans made by it hereunderthereto, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice provisions of any such counsel, accountants or expertsthis Agreement and the Security Agreements. Each of the Agent and the Collateral Agents may perform exercise any and all of its duties and exercise its rights and powers hereunder by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Partiesagents, officers or employees. The exculpatory provisions of In addition, each Bank hereby irrevocably authorizes and directs the preceding paragraphs shall apply Collateral Agents to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent mayenter, on behalf of each of them, into the Lenders FTX Intercreditor Agreement (in the case of the FTX Collateral Agent) and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment Security Agreements as Agent hereunder by a successor, such successor shall succeed contemplated pursuant to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite Each Lender hereby appoints and authorizes (a) the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents Agent to take such actions action as agent on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers and discretion under this Agreement as are delegated to the Agents Administrative Agent by the terms of the Loan Documentshereof, together with such actions powers and discretion as are reasonably incidental thereto, and (b) the Documentation Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Documentation Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. The Administrative Agent and, As to the extent any matters not expressly provided herein, the London Agent are hereby expressly authorized for by the Lenders and each Issuing Bankthis Agreement (including, without hereby limiting any implied authoritylimitation, (a) to receive on behalf enforcement or collection of the Lenders and the Issuing Banks all payments of principal of and interest on the LoansNotes), all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in connection with its agency hereunderso acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; and (c) provided, however, that the Administrative Agent shall not be required to distribute take any action that exposes the Administrative Agent to each Lender copies of all notices, financial statements and other materials delivered by the Company personal liability or any other Loan Party pursuant that is contrary to this Agreement or the other Loan Documents as received applicable law. The Administrative Agent agrees to give to each Lender prompt notice of each notice given to it by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated pursuant to or obtained by the institution serving as terms of this Agreement. . Neither the Administrative Agent or the Documentation Agent nor any of its Affiliates in any capacity. No Agent respective directors, officers, agents or employees shall be liable for any action taken or not omitted to be taken by it or them under or in connection with the consent this Agreement, except for its or at the request their own gross negligence or willful misconduct. Without limitation of the Required Lenders (or such other number or percentage generality of the Lenders foregoing, the Administrative Agent and the Documentation Agent: (i) may treat the payee of any Note as shall be necessary under the circumstances holder thereof until the Administrative Agent receives and accepts an Assignment and Acceptance entered into by the Lender that is the payee of such Note, as assignor, and an Eligible Assignee, as assignee, as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, 8.07; (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be including counsel for the CompanyBorrower), independent public accountants and other experts selected by it, it and shall not be liable for any action taken or not omitted to be taken in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by ; (iii) make no warranty or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply representation to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, Lender and shall apply not be responsible to their respective activities any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement; (iv) shall not have any duty to ascertain or to inquire as to the syndication performance or observance of any of the revolving credit facility provided for herein as well as activities as Agent. Subject to terms, covenants or conditions of this Agreement on the appointment and acceptance part of a successor Agent as provided in this paragraph, the Borrower or any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then Subsidiaries or to inspect the retiring Agent may, on behalf property (including the books and records) of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, Borrower or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successorSubsidiaries; (v) shall not be responsible to any Lender for the due execution, such successor shall succeed to and become vested with all the rightslegality, powersvalidity, privileges and duties of the retiring Agentenforceability, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereundergenuineness, the provisions sufficiency or value of this Article Agreement or any other instrument or document furnished pursuant hereto; and Section 10.03 (vi) shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties incur no liability under or in respect of this Agreement by acting upon any actions taken notice, consent, certificate or omitted other instrument or writing (which may be by telecopier, telegram or telex) believed by it to be taken genuine and signed or sent by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents proper party or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunderparties.
Appears in 1 contract
Samples: Credit Agreement (United Parcel Service of America Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB The Chase Manhattan Bank is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lender, hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to any of the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrowers pursuant to this Agreement or the other Loan Documents as received by the Administrative such Agent. Without limiting the generality Neither Agent nor any of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere 110 contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Neither any Agent also may rely upon nor any statement made of its Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that neither Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 10.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with CCSC or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents either Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents either Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Each Lender hereby authorizes the Administrative Agent to enter into the Intercreditor Agreement on behalf of such Lender and to exercise its rights and perform its obligations thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Each bank serving as an Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the any Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the Loan other Credit Documents. Without limiting the generality of the foregoing, (a) no the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Loan other Credit Documents that the Administrative Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of or, if so specified by this Agreement, all the Lenders as shall be necessary under the circumstances as provided in Section 10.02), Lenders) and (c) except as expressly set forth herein and in the Loan other Credit Documents, no the Administrative Agent shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the any Company or any of its Subsidiaries Affiliates that is communicated to or obtained by the institution bank serving as Administrative Agent or any of its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, if so specified by this Agreement, all the Lenders, or such other number or percentage of as the Lenders as Administrative Agent shall believe in good faith shall be necessary necessary, under the circumstances as provided in Article VII and Section 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Company Borrower, a Lender or a Lenderan Issuing Bank, and no the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any Loan other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder under any Credit Document or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein in the Credit Documents or thereinthe occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Time Warner Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB JPMorgan Chase Bank is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank holder and to exercise such powers as are specifically delegated to the Agents by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent Agents are hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has Agents have actual knowledge acquired in connection with its their agency hereunder; and (c) to distribute promptly to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrowers pursuant to this Agreement or the other Loan Documents as received by the Administrative Applicable Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and Neither the Agents and nor any of their Affiliates may accept deposits fromdirectors, lend money to and generally engage in any kind of business with the Company officers, employees or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent agents shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent or at the request any of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its them except for their own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the covenantsterms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other terms instruments or conditions set forth herein or therein, (iv) agreements. The Agents may deem and treat the validity, enforceability, effectiveness or genuineness of Lender that makes any Loan Document or any other agreementas the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, instrument or documentgiven as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or (v) refraining from acting, in accordance with written instructions signed by the satisfaction Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. The Agents shall, in the absence of any condition set forth in Article IV or elsewhere in any Loan Documentknowledge to the contrary, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it them in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Agent also Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by any other Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrowers of any of their respective obligations hereunder or in connection herewith. The Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, them with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it them in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of Lenders hereby acknowledge that the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which Agents shall be a bank with an office in New York, New York, or an Affiliate of under no duty to take any such bank. Upon the acceptance of its appointment as Agent hereunder discretionary action permitted to be taken by a successor, such successor shall succeed them pursuant to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as Agreement unless it shall from time be requested in writing to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunderdo so by the Required Lenders.
Appears in 1 contract
Samples: Agreement (Perkinelmer Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB Chase is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, CAF Agent on behalf of the Lenders and each Issuing the Fronting Bank. Each of the Lenders, each assignee of any such Lender Lenders and each Issuing the Fronting Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing holder and the Fronting Bank and to exercise such powers as are specifically delegated to the Agents by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders Lenders, the Fronting Bank and each Issuing Bankthe CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders Lenders, the Fronting Bank and the Issuing Banks CAF Agent all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Outstanding Credits and all other amounts due to the Lenders Lenders, the Fronting Bank and the CAF Agent hereunder, and promptly to distribute to each Lender or Issuing Lender, the Fronting Bank and the CAF Agent its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders and the Fronting Bank to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender and the Fronting Bank copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrowers pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as No Agent or any of its Affiliates in any capacity. No Agent directors, officers, employees or agents shall be liable as such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the covenantsterms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders or the Fronting Bank for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other terms instruments or conditions set forth herein agreements. The Agents may deem and treat the Lender or thereinthe Fronting Bank which makes any Extension of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender or the Fronting Bank (as the case may be), (iv) given as provided herein, of the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or documenttransfer thereof. The Agents shall in all cases be fully protected in acting, or (v) refraining from acting, in accordance with written instructions signed by the satisfaction of Required Lenders and, except as otherwise specifically provided herein, such instructions and any condition set forth in Article IV action or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to inaction pursuant thereto shall be delivered to such Agentbinding on all the Lenders and the Fronting Bank. Each Agent shall of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender or the Fronting Bank of any of its obligations hereunder or to the other Agent or any Lender or the Fronting Bank on account of the failure of or delay in performance or breach by any other Lender or the Fronting Bank , the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each Agent also of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders and the Fronting Bank hereby acknowledge that neither of the Agents shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Fronting Bank and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint a successorsuccessor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksFronting Bank, appoint a successor Agent which shall be Agent, having a bank with an office in New York, New York, combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its any appointment as Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the any Agent's resignation hereunder, the provisions of this Article and Section 10.03 8.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Agent. With respect to the Extensions of Credit made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its Outstanding Credits) of any expenses incurred for the benefit of the Lenders or the Fronting Bank in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Fronting Bank, which shall not have been reimbursed by the Borrowers and (ii) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender and the Fronting Bank agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender and the Fronting Bank acknowledges that it has, independently and without reliance upon the Agents or any other Lender or the Fronting Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the Fronting Bank also acknowledges that it will, independently and without reliance upon the Agents or any other Lender or the Fronting Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or related agreement or any document furnished hereunder or thereunder. Neither Bank of America, N.A. nor Citibank, N.A. shall, by virtue of its designation as "Co-Syndication Agent", nor shall The Bank of New York, by virtue of its designation as "Documentation Agent", have any duties, liabilities, obligations or responsibilities under this Agreement other than as a Lender hereunder.
Appears in 1 contract
Samples: Conformed Copy (Txu Electric Co)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB Royal Bank of Canada is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankSecured Party, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks Secured Parties all payments of principal of and interest on the LoansObligations, all payments in respect of LC Disbursements and all other amounts due to the Lenders Secured Parties hereunder, and promptly to distribute to each Lender or Issuing Bank Secured Party its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by such Agent; (d) to enter into the Administrative Agent. Without limiting the generality Security Documents on behalf of the foregoing, if Secured Parties; and (e) to claim all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory Obligations owed to any Secured Party against Borrower in its own name for the Administrative Agent shall have been entered into, purpose of any Security Documents. None of the Administrative Agent is hereby expressly authorized to release Agents nor any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor their Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not omitted to be taken by it with any of them except to the consent extent finally judicially determined to have resulted from its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or persons. Each Agent also may rely upon None of the Agents nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the CompanyBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right, in consultation with the Company, right to appoint a successor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500.0 million or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither RBC Capital Markets, as Lead Arranger, nor General Electric Capital Corporation, as Syndication Agent, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB The Chase Manhattan Bank is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) as provided in Article VII, to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and Neither the Agents and nor any of their Affiliates may accept deposits fromdirectors, lend money to and generally engage in any kind of business with the Company officers, employees or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent agents shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement, or any other than Loan Documents or other instruments or agreements. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. The Agents shall, in the absence of knowledge to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it them in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Agent also Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or a Borrower of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. The Agents may execute any and all duties hereunder and under the other Loan Documents by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, them with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it them in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by them pursuant to the provisions of this Agreement or any other Loan Document unless they shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank. Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 10.03 11.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. With respect to the Loans made by it hereunder, the Agents in their individual capacity and not as Agents shall have the same rights and powers as any other Lender and may exercise the same as though they were not the Agents, and the Agents and their affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings or any Subsidiary or other Affiliate thereof as if they were not the Agents. Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its outstanding Term Loans, Revolving Exposures and unusued Commitments at the time of such demand) of any expenses incurred for the benefit of the Lenders by the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by one of the Borrowers and (b) to indemnify and hold harmless the Agents and any of their directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against them in their capacity as Agents or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrowers; PROVIDED that no Lender shall be liable to the Agents for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or wilful misconduct of the Agents or any of their directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriateapplicable, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriateapplicable, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this AgreementCitibank, JPMCB N.A. is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and each Issuing BankCitibank, N.A. accepts such appointments. Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents Administrative Agent and the Collateral Agent to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto; provided that the Administrative Agent will not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable Law, including for the avoidance of doubt, any action that may be in violation of the automatic stay under any debtor relief law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any debtor relief law. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and to promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Agent it has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agentit. Without limiting the generality None of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release Agents nor any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor their Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not omitted to be taken by it with any of them except to the consent extent finally judicially determined to have resulted from its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each No Agent also may rely upon or its Related Parties shall have any statement made responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right, in consultation with the Company, right to appoint a successor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank; provided that if the retiring Agent shall notify Borrower, the Lenders and the Issuing Bank that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in case of any collateral security held by the retiring Agent on behalf of the Lenders or the Issuing Bank under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed) and (b) all payments, communications and determinations provided to be made by, to or through the Agent shall instead be made by or to each Lender and each Issuing Bank directly, until such time as the Requisite Lenders appoint a successor Agent as provided for above in this Section. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Anything herein to the contrary notwithstanding, if at any time the Requisite Lenders determine that the Person serving as Administrative Agent is (without taking into account any provision in the definition of “Defaulting Lender” requiring notice from the Administrative Agent or any other party) a Defaulting Lender pursuant to clause (v) of the definition thereof, the Requisite Lenders (determined after giving effect to Section 9.08) may by notice to Borrower and such Person remove such Person as Administrative Agent and appoint a replacement Administrative Agent hereunder. Such removal will, to the fullest extent permitted by applicable law, be effective on the earlier of (i) the date a replacement Administrative Agent is appointed and (ii) the date 30 days after the giving of such notice by the Requisite Lenders (regardless of whether a replacement Administrative Agent has been appointed). No Person that obtains the benefits of any Collateral pursuant to a Hedging Agreement and/or Secured Cash Management Agreement shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision hereof, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Secured Obligations arising under Secured Cash Management Agreements or Hedging Agreements unless the Administrative Agent has received written notice of such Secured Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Person. So long as any Lender is a Defaulting Lender, such Lender will not be a Cash Management Bank or Hedge Bank with respect to any Secured Cash Management Agreement or Hedging Agreement entered into while such Lender was a Defaulting Lender. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, none of CGMI BANA, Barclays, GS, and JPM, as Joint Lead Arrangers, Citi as Syndication Agent nor Citi, BANA, Barclays, GS, and JPM, as Co-Documentation Agents, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. If the IRS or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold any tax from any amounts paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding tax ineffective), such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any interest, additions to tax and penalties, and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this paragraph. The agreements in this paragraph shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other obligations.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB CSFB is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and each the Issuing BankBank (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the "Agents"). Each of the Lenders, each assignee of any such Lender and each the Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such the Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks Bank all payments of principal of and interest on the Loans, all payments in respect of LC L/C Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or the Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company and PHI or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is Agents are hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan DocumentsDocuments and release the Security Interest in any Collateral, in the event that all the capital stock of the Guarantor, or such Guarantor Collateral, shall be sold, transferred or otherwise disposed of to a Person person that is not an Affiliate of the Company Borrower in a transaction permitted by Section 6.036.05 hereof, and to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, in each case as contemplated by and in accordance with the provisions of this Agreement and the other Loan Documents. Neither the Agents nor any of their respective directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower or any other Loan Party of any of the terms, conditions, covenants or agreements contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents, instruments or agreements. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. Neither the Agents nor any of their respective directors, officers, employees or agents shall have any responsibility to the Company or any other Loan Party on account of the failure of or delay in performance or breach by any Lender or the Issuing Bank of any of its obligations hereunder or to any Lender or the Issuing Bank on account of the failure of or delay in performance or breach by any other Lender or the Issuing Bank or the Company or any other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be enti tled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, any Agent may resign at any time by notifying the Lenders and the Borrower in writing. Upon any such resignation, the Required Lenders shall have the right to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. With respect to any the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary of the Subsidiaries or other Affiliate thereof as if it were not an Agent. The Agents Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share (based on the amount of its Loans and available commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have any duties or obligations except those expressly set forth in been reimbursed by the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred Borrower and is continuing, (b) no to indemnify and hold harmless each Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that is communicated to may be imposed on, incurred by or obtained by the institution serving asserted against it in its capacity as Agent or any of its Affiliates them in any capacity. No Agent way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrower or any other Loan Party; provided that no Lender shall be liable to an Agent or any such other indemnified person for any action taken portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or not taken disbursements that are determined by it with a court of competent jurisdiction by final and nonappealable judgment to have resulted from the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge misconduct of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenantsits directors, agreements officers, employees or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agentagents. Each Agent shall be entitled Revolving Credit Lender agrees to rely uponreimburse each of the Issuing Bank and its directors, officers, employees and shall not incur any liability for relying uponagents, any noticein each case, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine the same extent and subject to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel same limitations as provided above for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as AgentAgents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Each bank serving as an Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the any Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, (a) no the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents hereby that the Administrative Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of or, if so specified by this Agreement, all the Lenders as shall be necessary under the circumstances as provided in Section 10.02Lenders), and (c) except as expressly set forth in herein, the Loan Documents, no Administrative Agent shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the any Company or any of its Subsidiaries that is communicated to or obtained by the institution bank serving as Administrative Agent or any of its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of or, if so specified by this Agreement, all the Lenders as shall be necessary under the circumstances as provided in Section 10.02Lenders) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Company any Borrower or a Lender, and no the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any Loan other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder under any Credit Document or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinin the Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the a proper Person. Each An initial list of the proper Persons with respect to the Borrowers appears on Schedule 8. Schedule 8 shall not be altered except in writing by a Person appearing thereon (or by a successor to such Person occupying the equivalent office). The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereonthereon so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 in all material respects (it being understood that oral notices of borrowing will be confirmed in writing by such Borrower in accordance with Section 2.03). Each The Administrative Agent may consult with legal counsel (who may be counsel for the CompanyBorrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Each The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the CompanyBorrowers, to appoint a successorsuccessor which, so long as no Event of Default is continuing, shall be reasonably acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.such
Appears in 1 contract
Samples: Credit Agreement (Time Warner Inc)
The Agents. In order to expedite Each Lender hereby irrevocably designates and appoints the transactions contemplated by Agents as the agents of such Lender under this AgreementAgreement and the other Loan Documents, JPMCB is hereby appointed to act as Administrative and each Lender irrevocably authorizes each Agent, and JPMEL is hereby appointed to act as London Agentin such capacity, on behalf of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions action on its behalf under the provisions of such Lender or assignee or such Issuing Bank this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Agents such Agent by the terms of this Agreement and the other Loan Documents, together with such actions and other powers as are reasonably incidental thereto. Each Lender that holds Term B-1 Loans or has Term B-1 Commitments and each Qualified Counterparty (in each case, in its capacity as such) hereby irrevocably designates and appoints the Collateral Agent as an agent of such Person under this Agreement and each other Loan Document to which the Collateral Agent is a party. In addition, without hereby limiting any implied authority, each Lender hereby expressly authorizes and directs the Collateral Agent to enter into each Loan Document to which it is a party as its agent. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative such Agent. Without limiting the generality None of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release Agents nor any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor their Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not omitted to be taken by it with any of them except to the consent extent finally judicially determined to have resulted from its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Agent also may rely upon None of the Agents nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel. The Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the Requisite Lenders. The Collateral Agent hereby agrees that it holds and will hold all of its right, accountants title and interest in, to and under the Security Documents and the Collateral granted to the Collateral Agent thereunder whether now existing or expertshereafter arising (all such right, title and interest being hereinafter referred to as the “Collateral Estate”) under and subject to the conditions set forth in this Agreement; and the Collateral Agent further agrees that it will hold such Collateral Estate for the benefit of the Secured Parties, for the enforcement of the payment of all Obligations (subject to the limitations and priorities set forth herein and in the respective Security Documents) and as security for the performance of and compliance with the covenants and conditions of this Agreement and each of the Security Documents. Each All of the powers, remedies and rights of the Collateral Agent as set forth in this Agreement may perform be exercised by the Collateral Agent in respect of any Security Document as though set forth in full therein and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent powers, remedies and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication rights of the revolving credit facility provided for Collateral Agent as set forth in any Security Document may be exercised from time to time as herein as well as activities as Agentand therein provided. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow and subject to the next succeeding paragraph with respect to the Collateral Agent, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right, in consultation with the Company, right to appoint a successor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500.0 million or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 10.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Spirit AeroSystems Holdings, Inc.)
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, JPMCB Chase is hereby appointed to act as Administrative AgentAgent and FTX Collateral Agent for the Banks under this Agreement and the FTX Security Agreement and as Documentation Agent for the Banks under this Agreement. None of the Agents shall have any duties or responsibilities with respect hereto except those expressly set forth herein. Each Bank, and JPMEL is hereby appointed to act as London Agent, on behalf of the Lenders and each Issuing Bank. Each of the Lenders, each assignee subsequent holder of any such Lender and each Issuing Bank Promissory Note by its acceptance thereof, hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders Banks hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders Banks to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender Bank copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative FTX Collateral Agent is hereby expressly authorized to release execute any Guarantor from its obligations hereunder and under all documents (including releases) with respect to the other Loan Documents, in collateral for the event that all Loans and the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate rights of the Company in a transaction permitted by Section 6.03. With secured parties with respect to any Loans made by it hereunderthereto, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice provisions of any such counsel, accountants or expertsthis Agreement and the FTX Security Agreement. Each Agent of the Agents may perform exercise any and all of its duties and exercise its rights and powers hereunder by or through any one their respective agents, officers or more sub-agents appointed by such Agentemployees. Each In addition, each Bank hereby irrevocably authorizes and directs the Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply FTX Collateral Agent to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent mayenter, on behalf of each of them, into the Lenders respective Intercreditor Agreement and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment FTX Security Agreement as Agent hereunder by a successor, such successor shall succeed contemplated pursuant to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Fm Properties Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Each bank serving as an Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the any Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, (a) no the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents hereby that the Administrative Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of or, if so specified by this Agreement, all the Lenders as shall be necessary under the circumstances as provided in Section 10.02Lenders), and (c) except as expressly set forth in herein, the Loan Documents, no Administrative Agent shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the any Company or any of its Subsidiaries that is communicated to or obtained by the institution bank serving as Administrative Agent or any of its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of or, if so specified by this Agreement, all the Lenders as shall be necessary under the circumstances as provided in Section 10.02Lenders) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Company Parent, any Borrower or a Lender, and no the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any Loan other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder under any Credit Document or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinin the Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this AgreementAppointment Nature of Relationship. Bank One, JPMCB NA is hereby appointed by each of the Lenders as its contractual representative (herein referred to as the "Administrative Agent") hereunder and under each other Documents, and each of the Lenders irrevocably authorizes the Administrative Agent to act as Administrative the contractual representative of such Lender with the rights and duties expressly set forth herein and in the other Documents. JX Xxxxxx Europe Limited, Bank One, NA, Tokyo Branch and Bxxx Xxx, XX, Xxxxxx Branch are each hereby respectively appointed by each of the Lenders as their contractual representative (each a "Funding Agent", and JPMEL is hereby appointed collectively, the "Funding Agents") hereunder and under each other Documents, and each of the Lenders irrevocably authorizes the Funding Agents to act as London the contractual representative of such Lender with the rights and duties expressly set forth herein and in the other Documents (the Administrative Agent and the Funding Agents are collectively referred to herein as the "Agents"). The Agents agree to act as such contractual representative upon the express conditions contained in this Article 10. Notwithstanding the use of the defined term "Agent, on behalf ," it is expressly understood and agreed that none of the Agents shall have any fiduciary responsibilities to any Lender by reason of this Agreement or any other Documents and that the Agents are merely acting as the contractual representative of the Lenders with only those duties as are expressly set forth in this Agreement and each Issuing Bankthe other Documents. Each In their capacity as the Lenders' contractual representative, the Agents (i) do not hereby assume any fiduciary duties to any of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as (ii) are delegated to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf "representatives" of the Lenders and within the Issuing Banks all payments meaning of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each Section 9-105 of the Lenders to Uniform Commercial Code and (iii) are acting as an independent contractors, the Company of any Event of Default specified in this Agreement rights and duties of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) are limited to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in this Agreement and the Loan other Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage Each of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, hereby agrees to assert no claim against any Agent shall have on any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document agency theory or any other agreement, instrument or document, or (v) the satisfaction theory of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying uponbreach of fiduciary duty, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice all of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of which claims each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunderhereby waives.
Appears in 1 contract
Samples: Revolving Credit Agreement (Richardson Electronics LTD/De)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each the Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Banks hereby irrevocably appoints Citibank, N.A. as its administrative agent and authorizes the Agents Citibank, N.A. to take such actions on behalf its behalf, including execution of such Lender or assignee or such Issuing Bank the other Loan Documents, and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto, and Citibank, N.A. hereby accepts such appointment. The Citibank, N.A. or an Affiliate or designee thereof shall also act as the Collateral Agent under the Loan Documents (for purposes of this Article VIII and Sections 9.03 and 2.17, the Administrative Agent andand the Collateral Agent shall be collectively referred to as the “Agents”), to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments hereby irrevocably appoints and authorizes Citibank, N.A. (and Citibank, N.A. hereby accepts such appointment) and each such Affiliate and designee to act as the agent of principal such Lender and Issuing Bank for purposes of acquiring, holding and interest on the Loans, all payments in respect of LC Disbursements enforcing any and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice Liens on behalf of each Collateral granted by any of the Lenders Loan Parties to secure any of the Company of Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; co-agents, sub-agents and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered attorneys-in-fact appointed by the Company or any other Loan Party Collateral Agent pursuant to this Agreement Article VIII for purposes of holding or enforcing any Lien on the other Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.03), as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents as received by if set forth in full herein with respect thereto. The banks serving as the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations Agents hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in their capacity as Lenders as any other Lender and may exercise the same as though it they were not an Agent, and the Agents such banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Irish Holdco or any Subsidiary or other Affiliate thereof as if it they were not an AgentAgent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the respective Agent is required to exercise upon receipt of notice in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in the Loan Documents, no Agent the Agents shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the Company Irish Holdco or any of its Subsidiaries that is communicated to or obtained by the institution any bank serving as an Agent or any of its Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02 or elsewhere in the Loan Documents) or in the absence of its own gross negligence or wilful willful misconduct. No Agent The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the respective Agent by Irish Holdco, the Company Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinin any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent The Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it them to be genuine and to have been signed or sent by the proper Person. Each Agent The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for Irish Holdco, the CompanySubsidiary Guarantors or the Borrower), independent accountants and other experts selected by itthem, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each Agent The Agents may perform any and all its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such the respective Agent. Each Agent The Agents and any such sub-agent may perform any and all its their duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Banks, the Borrower and any Additional Borrower. Any such resignation by the Administrative Agent hereunder shall also constitute its resignation as an Issuing Bank and the CompanySwingline Lender, as applicable, in which case the resigning Administrative Agent (x) shall not be required to issue any further Letters of Credit or make any additional Swingline Loans hereunder and (y) shall maintain all of its rights as Issuing Bank or Swingline Lender, as the case may be, with respect to any Letters of Credit issued by it, or Swingline Loans made by it, prior to the date of such resignation. Upon any such resignation, the Required Lenders shall have the right, in consultation right (with the Companyconsent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower and any Additional Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower, any Additional Borrower and such successor. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article VIII and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Lenders, the Borrower and any Additional Borrower. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed); provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower and any Additional Borrower to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent’s resignation hereunder, the provisions of this Article VIII and Section 9.03 shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Horizon Therapeutics Public LTD Co)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender Lenders and each the Issuing Bank Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks Lenders all payments of principal of and interest on the Loans, all payments in respect of Loans and the LC Disbursements and all other amounts due to the Lenders and the Issuing Lenders hereunder, and promptly to distribute to each Lender or and Issuing Bank Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting Neither any Agent nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the generality contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the foregoingterms, if all applicable mandatory prepayments under Section 2.10(c) shall have been made conditions, covenants or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, agreements contained in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agentthis Agreement. The Agents shall not have any duties be responsible to the Lenders for the due execution, genuineness, validity, enforceability or obligations except those expressly set forth in the Loan Documentseffectiveness of this Agreement or other instruments or agreements. Without limiting the generality None of the foregoingAgents, (a) no Agent the Borrowers or Viacom International shall be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, (b) and no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by provision in the Loan Documents that and no course of dealing between the parties hereto shall be deemed to create any fiduciary duty owing to any Agent, any Lender, any Borrower, Viacom International or any other Subsidiary, or any of their respective Affiliates, by any party hereto. The Administrative Agent is required to exercise upon receipt of notice shall in writing all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or such other number or percentage of inaction pursuant thereto shall be binding on all the Lenders as shall be necessary under and the circumstances as provided in Section 10.02)Issuing Lenders. The Administrative Agent shall, and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed knowledge to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lendercontrary, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be NY cbsfive-year_amdt2_Part_003.htm i genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any Lender or Issuing Lender of any of its obligations hereunder or to any Lender or Issuing Lender on account of the failure of or delay in performance or breach by any other Agent, any other Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders and the Issuing Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint from the Lenders a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint from the Lenders a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank, which successor shall be acceptable to CBS (such acceptance not to be unreasonably withheld). Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.5 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. With respect to the Loans made by them and their LC Exposure hereunder, the Agents in their individual capacity and not as Agents shall have the same rights and powers as any other Lender and may exercise the same as though they were not Agents, and the Agents and their affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of their respective Subsidiaries or any Affiliate thereof as if they were not Agents. Each Lender and Issuing Lender agrees (i) to reimburse the Administrative Agent in the amount of its pro rata share (based on its Total Facility Percentage or, after the date on which the Loans shall have been paid in full, based on its Total Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or NY cbsfive-year_amdt2_Part_003.htm i the Issuing Lenders, which shall not have been reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold harmless the Administrative Agent and any of its directors, officers, employees or agents, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement, to the extent the same shall not have been reimbursed by or on behalf of CBS; provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender and Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Neither the Co-Documentation Agents, the Syndication Agent, the Joint Lead Arrangers, the Sole Bookrunner nor any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, JPMCB Inc. is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the First Lien Lenders and the Term C Lenders. Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lender, hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to any of the Company Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative such Agent. Without limiting the generality None of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release Agents nor any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor their Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with any of them except to the consent extent finally judicially determined to have resulted from its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite First Lien Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Agent also may rely upon None of the Agents nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequisite First Lien Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower (it being understood that Citicorp North America Inc. may resign from its role as Agent for the First Lien Lenders or as Agent for the Term C Lenders, or both). Upon any such resignation, the Required Requisite First Lien Lenders shall have the rightright to appoint a successor, in consultation with except that upon any resignation of an Agent for the CompanyTerm C Lenders, the Requisite Lenders shall have the right to appoint a successor. If no successor shall have been so appointed by the Required Requisite First Lien Lenders or the Requisite Lenders, as applicable, and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500.0 million or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither of SSBI or DBSI, each as a Joint Lead Arranger, in such capacity, nor DBSI, as Syndication Agent, or JPMorgan, as Documentation Agent, or SunTrust Bank, as Co-Documentation Agent, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender Lenders and each the Issuing Bank Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of Loans and the LC Disbursements and all other amounts due to the Lenders and Issuing Lenders hereunder, and promptly to distribute to each Lender or and Issuing Bank Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Westinghouse of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Westinghouse pursuant to this Agreement or and the other Loan Documents as received by the Administrative Agent. Without limiting the generality Neither any Agent nor any of the foregoingits directors, if all applicable mandatory prepayments under Section 2.10(c) shall have been made officers, employees or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent agents shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by Westinghouse or any other Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items Loan Documents or other LAW2:13233 73 68 instruments or agreements. The Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. The Administrative Agent shall, in the absence of knowledge to be delivered to such Agent. Each Agent shall the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Loan Party on account of the failure of or delay in performance or breach by any Lender or Issuing Lender of any of its obligations hereunder or to any Lender or Issuing Lender on account of the failure of or delay in performance or breach by any other Agent, any other Lender or Issuing Lender or any Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders and the Issuing Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyWestinghouse. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint from the Lenders a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint from the Lenders a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank, which successor shall be acceptable to Westinghouse (such acceptance not to be unreasonably withheld). Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 10.03 8.5 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. With respect to the Loans made by them and their LC Exposure hereunder, the Agents in their individual capacity and not as Agents shall have the same rights and powers as any other Lender and may exercise the same as though they were not Agents, and the Agents and their affiliates may accept deposits from, lend money to and generally engage in any kind of business with Westinghouse or any of its Subsidiaries or any Affiliate thereof as if they were not Agents. Each Lender and Issuing Lender agrees (i) to reimburse the Administrative Agent in the amount of its pro rata share (based on its Total Facility Percentage or, after the date on which the Loans shall have been paid in full, based on its Total Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents LAW2:13233 74 69 and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by or on behalf of Westinghouse and (ii) to indemnify and hold harmless the Administrative Agent and any of its directors, officers, employees or agents, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by or on behalf of Westinghouse, provided that no Lender or Issuing Lender shall be liable to the Administrative Agent or any such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or wilful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender and Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, and related agreement or any document furnished hereunder or thereunder. The Documentation Agent and the Senior Managing Agents, the Managing Agents, the Co-Agents and the Lead Managers referred to in the signature pages hereof shall not have any duties or responsibilities hereunder in their respective capacities as such.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB JPMorgan Chase is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, CAF Agent on behalf of the Lenders and each Issuing the Fronting Bank. Each of the Lenders, each assignee of any such Lender Lenders and each Issuing the Fronting Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing holder and the Fronting Bank and to exercise such powers as are specifically delegated to the Agents by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders Lenders, the Fronting Bank and each Issuing Bankthe CAF Agent, without hereby limiting any implied authority, (ai) to receive on behalf of the Lenders Lenders, the Fronting Bank and the Issuing Banks CAF Agent all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Outstanding Credits and all other amounts due to the Lenders Lenders, the Fronting Bank and the CAF Agent hereunder, and promptly to distribute to each Lender or Issuing Lender, the Fronting Bank and the CAF Agent its proper share of each payment so received; , (bii) to give notice on behalf of each of the Lenders and the Fronting Bank to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; hereunder and (ciii) to distribute to each Lender and the Fronting Bank copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as No Agent or any of its Affiliates in any capacity. No Agent directors, officers, employees or agents shall be liable as such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower of any of the covenantsterms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders or the Fronting Bank for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other terms instruments or conditions set forth herein agreements. The Agents may deem and treat the Lender or thereinthe Fronting Bank which makes any Extension of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender or the Fronting Bank (as the case may be), (iv) given as provided herein, of the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or documenttransfer thereof. The Agents shall in all cases be fully protected in acting, or (v) refraining from acting, in accordance with written instructions signed by the satisfaction of Required Lenders and, except as otherwise specifically provided herein, such instructions and any condition set forth in Article IV action or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to inaction pursuant thereto shall be delivered to such Agentbinding on all the Lenders and the Fronting Bank. Each Agent shall of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender or the Fronting Bank of any of its obligations hereunder or to the other Agent or any Lender or the Fronting Bank on account of the failure of or delay in performance or breach by any other Lender or the Fronting Bank, the other Agent or the Borrower of any of its obligations hereunder or in connection herewith. Each Agent also of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders and the Fronting Bank hereby acknowledge that neither of the Agents shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Fronting Bank and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint a successorsuccessor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksFronting Bank, appoint a successor Agent which shall be Agent, having a bank with an office in New York, New York, combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its any appointment as Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the any Agent's resignation hereunder, the provisions of this Article and Section 10.03 8.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Agent. With respect to the Extensions of Credit made by it hereunder, each of the Agents, in its individual capacity and not as an Agent, shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its Outstanding Credits) of any expenses incurred for the benefit of the Lenders or the Fronting Bank in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Fronting Bank, which shall not have been reimbursed by the Borrower and (ii) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender and the Fronting Bank agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the 364-Day Credit Agreement shall be conclusive and binding for all purposes. Each Lender and the Fronting Bank acknowledges that it has, independently and without reliance upon the Agents or any other Lender or the Fronting Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the Fronting Bank also acknowledges that it will, independently and without reliance upon the Agents or any other Lender or the Fronting Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or related agreement or any document furnished hereunder or thereunder.. Neither Bank of America, N.A. nor Citibank, N.A. shall, by virtue of its designation as "Co-Syndication Agent", nor shall The Bank of New York, by virtue of its designation as
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each the Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Each of the Canadian Lenders hereby irrevocably appoints the Canadian Agent and, as its agent and authorizes the Canadian Agent to take such actions on its behalf and to exercise such powers as are delegated to the extent expressly provided herein, the London Canadian Agent are hereby expressly authorized by the Lenders terms hereof, together with such actions and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf powers as are reasonably incidental thereto. Each of the UK Lenders hereby irrevocably appoints the UK Agent as its agent and authorizes the Issuing Banks all payments of principal of UK Agent to take such actions on its behalf and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to exercise such powers as are delegated to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative UK Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents terms hereof, together with such actions and powers as received by the Administrative Agentare reasonably incidental thereto. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Each bank serving as an Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an such Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents hereby that the such Agent is required to exercise upon receipt of notice in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.0211.02), and (c) except as expressly set forth in the Loan Documentsherein, no Agent shall have any duty to disclose, and no Agent or shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution bank serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.0211.02) or in the absence of its own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company a Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinherein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Companyany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks (in the case of the Administrative Agent) and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBanks (in the case of a successor Administrative Agent) and in consultation with the Company, appoint a successor Agent, which, in the case of the Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank; in the case of the Canadian Agent, shall be a bank with an office in Toronto, Canada, or an Affiliate of any such bank; and in the case of the UK Agent, shall be a bank with an office in London, England, or an Affiliate of any such bank. The appointment of a successor Canadian Agent or UK Agent shall be subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld). Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by any Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between such Borrower and such successor. After the an Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 11.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent, any Arranger, any Bookrunner, any Syndication Agent, any Documentation Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent, any Arranger, any Bookrunner, any Syndication Agent, any Documentation Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. None of the Arrangers, the Bookrunners or any Syndication Agent or Documentation Agent, if any, identified as such in this Agreement, shall have any right, power, obligation, liability, responsibility or duty under this Agreement, except in its capacity, as applicable, as Administrative Agent, Canadian Agent, UK Agent, a Lender or an Issuing Bank hereunder. Without limiting the foregoing, none of the Arrangers, the Bookrunners or the Syndication Agents or Documentation Agents, if any, shall have or be deemed to have a fiduciary relationship with any Lender.
Appears in 1 contract
Samples: Credit Agreement (Yrc Worldwide Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably appoints Citibank, N.A. as its administrative agent and authorizes the Agents Citibank, N.A. to take such actions on behalf its behalf, including execution of such Lender or assignee or such Issuing Bank the other Loan Documents, and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto, and Citibank, N.A. hereby accepts such appointment. The Citibank, N.A. or an Affiliate or designee thereof shall also act as the Collateral Agent under the Loan Documents (for purposes of this Article VIII and Sections 9.03 and 2.14, the Administrative Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on Collateral Agent shall be collectively referred to as the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder“Agents”), and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders hereby irrevocably appoints and authorizes Citibank, N.A. (and Citibank, N.A. hereby accepts such appointment) and each such Affiliate and designee to act as the Company agent of such Lender for purposes of acquiring, holding and enforcing any Event and all Liens on Collateral granted by any of Default specified in the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; connection, any co-agents, sub-agents and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered attorneys-in-fact appointed by the Company or any other Loan Party Collateral Agent pursuant to this Agreement Article VIII for purposes of holding or enforcing any Lien on the other Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.03), as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents as received by if set forth in full herein with respect thereto. The banks serving as the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations Agents hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in their capacity as Lenders as any other Lender and may exercise the same as though it they were not an Agent, and the Agents such banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Irish Holdco or any Subsidiary or other Affiliate thereof as if it they were not an AgentAgent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the respective Agent is required to exercise upon receipt of notice in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in the Loan Documents, no Agent the Agents shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the Company Irish Holdco or any of its Subsidiaries that is communicated to or obtained by the institution any bank serving as an Agent or any of its Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02 or elsewhere in the Loan Documents) or in the absence of its own gross negligence or wilful willful misconduct. No Agent The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the respective Agent by Irish Holdco, the Company Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinin any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent The Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it them to be genuine and to have been signed or sent by the proper Person. Each Agent The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for Irish Holdco, the CompanySubsidiary Guarantors or the Borrower), independent accountants and other experts selected by itthem, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each Agent The Agents may perform any and all its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such the respective Agent. Each Agent The Agents and any such sub-agent may perform any and all its their duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Borrower and the Companyany Additional Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation right (with the Companyconsent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower and any Additional Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower, any Additional Borrower and such successor. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article VIII and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Lenders, the Borrower and any Additional Borrower. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed); provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower and any Additional Borrower to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent’s resignation hereunder, the provisions of this Article VIII and Section 9.03 shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the Lenders, if any, identified in this Agreement as a Lead Arranger, aan Amendment No. 1 Arranger, an Amendment No. 2 Arranger, a Co-Documentation Agent or a Co-Syndication Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as a Lead Arranger, Amendment No. 1 Arranger, Amendment No. 2 Arranger, Co-Documentation Agent and/or Co-Syndication Agent, as applicable, as it makes with respect to the Agents in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Agents) authorized to act for, any other Lender. The Agents shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In their respective capacities, the Agents are “representatives” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Agents to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Agents) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Agents for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Agents are hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Collateral Agent on behalf of the Secured Parties. The Lenders hereby authorize the Collateral Agent to release or, as applicable, subordinate any Lien granted to or held by the Collateral Agent upon any Collateral and to enter into non-disturbance or similar agreements, in each case, in connection with any Indebtedness incurred pursuant to Section 6.01(b)(xvi)(ii) and any other Indebtedness described in Section 9.13, in connection with dispositions of assets permitted under Section 6.02 or, other than with respect to lien release, in connection with licensing or sub-licensing transactions permitted under Sections 6.02 and 6.03, all as described further therein. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate particular types or items of Collateral and enter into non-disturbance or similar agreements pursuant hereto. The Administrative Agent and the Collateral Agent are authorized to enter into any Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, and extensions, restructuring, renewals, replacements of, such agreements) in connection with the incurrence by any Loan Party of any Permitted Junior Secured Refinancing Debt, Permitted Pari Passu Secured Refinancing Debt or Permitted Refinancing Indebtedness with respect thereto, or any other Indebtedness permitted by the terms of this Agreement to be secured by the Collateral on a pari passu or junior priority secured basis, in each case in order to permit such Indebtedness to be secured by a valid, perfected Lien (with such priority as may be designated by Irish Holdco or relevant Restricted Subsidiary, to the extent such priority is permitted by the Loan Documents), and the parties hereto acknowledge that each Intercreditor Agreement is (if entered into) binding upon them. Each Lender (a) understands, acknowledges and agrees that Liens may be created on the Collateral pursuant to the documentation relating to any Indebtedness incurred as permitted by this Agreement which is (in accordance with the terms hereof) to be secured thereby, on a pari passu, or junior, secured basis to the Liens securing the Secured Obligations, which Liens securing any such other Indebtedness shall be subject to the terms and conditions of the relevant Intercreditor Agreement executed and delivered as required hereby, (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the respective Intercreditor Agreement (if entered into) and (c) hereby authorizes and instructs the Administrative Agent and Collateral Agent to enter into any Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, such agreements) in connection with the incurrence by any Loan Party of any secured Indebtedness as contemplated above, in order to permit such Indebtedness to be secured by a valid, perfected Lien (with such priority as may be designated by the Applicable Borrower or relevant Restricted Subsidiary, to the extent such priority is permitted by the Loan Documents), and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender Lenders and each the Issuing Bank Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of Loans and the LC Disbursements and all other amounts due to the Lenders and Issuing Lenders hereunder, and promptly to distribute to each Lender or and Issuing Bank Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality Neither any Agent nor any of the foregoingits directors, if all applicable mandatory prepayments under Section 2.10(c) shall have been made officers, employees or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent agents shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the covenantsterms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other terms instruments or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or documentagreements. The Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentor, other than to confirm receipt of items when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. The Administrative Agent shall, in the absence of knowledge to be delivered to such Agent. Each Agent shall the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any Lender or Issuing Lender of any of its obligations hereunder or to any Lender or Issuing Lender on account of the failure of or delay in performance or breach by any other Agent, any other Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon Lenders hereby acknowledge that the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as Agreement unless it shall from time be requested in writing to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunderdo so by the Required Lenders.
Appears in 1 contract
The Agents. In order Each Lender and each of the other Guaranteed Creditors (including each Guaranteed Creditor that is not or will not become a party to expedite the transactions contemplated by this Agreement) by its acceptance of the benefits of this Agreement and the respective Security Documents, JPMCB is hereby appointed appoints Citicorp North America, Inc. to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and each Issuing Bankto act as Collateral Agent on behalf of the Guaranteed Creditors. Each of the Lenders, each assignee of any such Lender and each Issuing Bank other Guaranteed Creditor hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank other Guaranteed Creditor and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing Bankother Guaranteed Creditor, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Canadian Parent or any Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company Canadian Parent or any Borrower pursuant to this Agreement as received by such Agent, (d) to enter into the Security Documents on behalf of the Lenders and each other Guaranteed Creditor and (e) to claim all Obligations owed to any Lender or any other Guaranteed Creditor against each Borrower in its own name for the purpose of any Security Documents. Each Lender (acting for itself and on behalf of each of its Lender Affiliates which is or becomes a Guaranteed Creditor from time to time) and each of the other Guaranteed Creditors confirms the appointment and designation of the Collateral Agent (or any successor thereto) as the person holding the power of attorney (“fondé de pouvoir”) within the meaning of Article 2692 of the Civil Code of Québec for the purposes of the hypothecary security under each deed of hypothec to be granted by each Qualified Non-U.S. Loan Party under the laws of the Province of Québec and, in such capacity, the Collateral Agent shall hold the hypothecs granted under the laws of the Province of Québec as such fondé de pouvoir in the exercise of the rights conferred thereunder. The execution by the Collateral Agent, as such fondé de pouvoir prior to the date hereof of any deed creating or evidencing any such hypothec is hereby ratified and confirmed. Notwithstanding the provisions of Section 32 of the Act respecting the special powers of legal persons (Québec), the Collateral Agent may acquire and be the holder of any of the debentures secured by any such hypothec. Each future Lender and each of the other Guaranteed Creditors that becomes party to this Agreement, by becoming a party to this Agreement, shall be deemed to have ratified and confirmed (for itself and, in the case of each Lender, on behalf of each of its Lender Affiliates that is or becomes a Guaranteed Creditor from time to time) the appointment of the Collateral Agent as fondé de pouvoir. None of the Agents nor any of their Related Parties shall be liable to the Guaranteed Creditors as such for any action taken or omitted to be taken by any of them except to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the terms, conditions, covenants or agreements contained in any Loan Document. The Agents shall not be responsible to the Guaranteed Creditors for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Party pursuant to this Agreement Documents or the other Loan Documents as received instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Administrative AgentRequisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Guaranteed Creditors. Without limiting Each Agent shall, in the generality absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. None of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) Agents nor any of their Related Parties shall have been made or arrangements therefor satisfactory any responsibility to the Administrative Agent shall have been entered into, Loan Parties on account of the Administrative Agent is hereby expressly authorized to release failure of or delay in performance or breach by any Guarantor from Guaranteed Creditors of any of its obligations hereunder and or to any Lender on account of the failure of or delay in performance or breach by any other Guaranteed Creditors or the Loan Parties of any of their respective obligations hereunder or under the any other Loan Documents, Document or in connection herewith or therewith. Each Agent may execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the event that advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the capital stock advice of such Guarantor counsel. Each Lenders (acting for itself and on behalf of each of its Lender Affiliates which is or becomes a Guaranteed Creditor from time to time) hereby acknowledges that no Agent shall be sold, transferred or otherwise disposed under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to a Person that is not an Affiliate of do so by the Company in a transaction permitted by Section 6.03Requisite Lenders. With respect to any the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Canadian Parent or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, none of CGMI, as the Lead Arranger, The Toronto-Dominion Bank, as Syndication Agent, or Comerica Bank or HSBC Bank USA, National Association, as Co-Documentation Agents, shall have any obligations, duties or responsibilities under this Agreement or any other Loan Document, and shall have no liability to any Lender or Loan Party or any of their respective Affiliates or any other Person in connection therewith or as a result thereof. The provisions of the third, fifth and sixth paragraphs of Section 8.01 shall apply to CGMI, as the Lead Arranger, The Toronto-Dominion Bank, as Syndication Agent, and Comerica Bank and HSBC Bank USA, National Association, as Co-Documentation Agents as fully as if it were an Agent.
Appears in 1 contract
Samples: Credit Agreement (Intertape Woven Products Services S.A. De C.V.)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB Chase and CSFB are hereby appointed to act as Co-Administrative Agents and Chase is hereby appointed to act as Administrative Payment Agent, and JPMEL is hereby appointed to act as London Agent, on behalf of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lenders hereby irrevocably authorizes the Co-Administrative Agents and the Payment Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Co-Administrative Agents and the Payment Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Any bank serving as Co-Administrative Agent and, to the extent expressly provided herein, the London or Payment Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an such Co-Administrative Agent or Payment Agent, and the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or Borrowers, any Subsidiary or other Affiliate thereof as if it were not an Agentsuch Co- Administrative Agent or Payment Agent hereunder. The Co-Administrative Agents and the Payment Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Co-Administrative Agent or Payment Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Co- Administrative Agent or Payment Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the such Co- Administrative Agent or Payment Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Co-Administrative Agent or Payment Agent shall have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries Subsidiary that is communicated to or obtained by the institution bank serving as Co-Administrative Agent or Payment Agent or any of its Affiliates in any capacity. No Co- Administrative Agent or Payment Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Co-Administrative Agent or Payment Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Co-Administrative Agent or Payment Agent by the Company Borrowers or a Lender, and no such Co-Administrative Agent or Payment Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinin any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Co-Administrative Agent or Payment Agent. Each Co-Administrative Agent or Payment Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Co-Administrative Agent or Payment Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Co- Administrative Agent or Payment Agent may consult with legal counsel (who may be counsel for the CompanyBorrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Co-Administrative Agent or Payment Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-sub- agents appointed by such Co-Administrative Agent or Payment Agent. Each Co- Administrative Agent or Payment Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of each the Co-Administrative Agents or Payment Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Co-Administrative Agent or Payment Agent. Subject to the appointment and acceptance of a successor Co- Administrative Agent or Payment Agent as provided in this paragraph, any Co- Administrative Agent or the Payment Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (f) or (g) of Article VII) the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Co- Administrative Agent or Payment Agent gives notice of its resignation, then the retiring Co-Administrative Agent mayor Payment Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (f) or (g) of Article VII), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Co- Administrative Agent or Payment Agent shall so request, designate and approve a successor Co-Administrative Agent or Payment Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Co-Administrative Agent or Payment Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Co-Administrative Agent or Payment Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Co- Administrative Agent or Payment Agent, and the retiring Co-Administrative Agent or Payment Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Co-Administrative Agent or the Payment Agent shall be the same as those payable to its predecessor unless otherwise agreed among the Borrowers and such successor. After a Co- Administrative Agent's or the Payment Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Co-Administrative Agent or Payment Agent, its sub-sub- agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Co-Administrative Agent or Payment Agent. Each Lender acknowledges that it has, independently and without reliance upon the Co-Administrative Agents or the Payment Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Co-Administrative Agents or the Payment Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agent or Co- Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: NNG Inc
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably appoints Citibank, N.A. as its administrative agent and authorizes the Agents Citibank, N.A. to take such actions on behalf its behalf, including execution of such Lender or assignee or such Issuing Bank the other Loan Documents, and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto, and Citibank, N.A. hereby accepts such appointment. The Citibank, N.A. or an Affiliate or designee thereof shall also act as the Collateral Agent under the Loan Documents (for purposes of this Article VIII and Sections 9.03 and 2.14, the Administrative Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on Collateral Agent shall be collectively referred to as the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder“Agents”), and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders hereby irrevocably appoints and authorizes Citibank, N.A. (and Citibank, N.A. hereby accepts such appointment) and each such Affiliate and designee to act as the Company agent of such Lender for purposes of acquiring, holding and enforcing any Event and all Liens on Collateral granted by any of Default specified in the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; connection, any co-agents, sub-agents and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered attorneys-in-fact appointed by the Company or any other Loan Party Collateral Agent pursuant to this Agreement Article VIII for purposes of holding or enforcing any Lien on the other Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.03), as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents as received by if set forth in full herein with respect thereto. The banks serving as the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations Agents hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in their capacity as Lenders as any other Lender and may exercise the same as though it they were not an Agent, and the Agents such banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Irish Holdco or any Subsidiary or other Affiliate thereof as if it they were not an AgentAgent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the respective Agent is required to exercise upon receipt of notice in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in the Loan Documents, no Agent the Agents shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the Company Irish Holdco or any of its Subsidiaries that is communicated to or obtained by the institution any bank serving as an Agent or any of its Affiliates in any capacity. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02 or elsewhere in the Loan Documents) or in the absence of its own gross negligence or wilful willful misconduct. No Agent The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the respective Agent by Irish Holdco, the Company Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinin any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent The Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it them to be genuine and to have been signed or sent by the proper Person. Each Agent The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for Irish Holdco, the CompanySubsidiary Guarantors or the Borrower), independent accountants and other experts selected by itthem, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each Agent The Agents may perform any and all its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such the respective Agent. Each Agent The Agents and any such sub-agent may perform any and all its their duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Borrower and the Companyany Additional Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation right (with the Companyconsent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower and any Additional Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower, any Additional Borrower and such successor. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article VIII and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Lenders, the Borrower and any Additional Borrower. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed); provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower and any Additional Borrower to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent’s resignation hereunder, the provisions of this Article VIII and Section 9.03 shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the Lenders, if any, identified in this Agreement as a Lead Arranger, a Amendment No. 1 Arranger, a Co-Documentation Agent or a Co-Syndication Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as a Lead Arranger, Amendment No. 1 Arranger, Co-Documentation Agent and/or Co-Syndication Agent, as applicable, as it makes with respect to the Agents in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Agents) authorized to act for, any other Lender. The Agents shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In their respective capacities, the Agents are “representatives” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Agents to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Agents) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Agents for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Agents are hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Collateral Agent on behalf of the Secured Parties. The Lenders hereby authorize the Collateral Agent to release or, as applicable, subordinate any Lien granted to or held by the Collateral Agent upon any Collateral and to enter into non-disturbance or similar agreements, in each case, in connection with any Indebtedness incurred pursuant to Section 6.01(b)(xvi)(ii) and any other Indebtedness described in Section 9.13, in connection with dispositions of assets permitted under Section 6.02 or, other than with respect to lien release, in connection with licensing or sub-licensing transactions permitted under Sections 6.02 and 6.03, all as described further therein. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate particular types or items of Collateral and enter into non-disturbance or similar agreements pursuant hereto. The Administrative Agent and the Collateral Agent are authorized to enter into any Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, and extensions, restructuring, renewals, replacements of, such agreements) in connection with the incurrence by any Loan Party of any Permitted Junior Secured Refinancing Debt, Permitted Pari Passu Secured Refinancing Debt or Permitted Refinancing Indebtedness with respect thereto, or any other Indebtedness permitted by the terms of this Agreement to be secured by the Collateral on a pari passu or junior priority secured basis, in each case in order to permit such Indebtedness to be secured by a valid, perfected Lien (with such priority as may be designated by Irish Holdco or relevant Restricted Subsidiary, to the extent such priority is permitted by the Loan Documents), and the parties hereto acknowledge that each Intercreditor Agreement is (if entered into) binding upon them. Each Lender (a) understands, acknowledges and agrees that Liens may be created on the Collateral pursuant to the documentation relating to any Indebtedness incurred as permitted by this Agreement which is (in accordance with the terms hereof) to be secured thereby, on a pari passu, or junior, secured basis to the Liens securing the Secured Obligations, which Liens securing any such other Indebtedness shall be subject to the terms and conditions of the relevant Intercreditor Agreement executed and delivered as required hereby, (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the respective Intercreditor Agreement (if entered into) and (c) hereby authorizes and instructs the Administrative Agent and Collateral Agent to enter into any Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, such agreements) in connection with the incurrence by any Loan Party of any secured Indebtedness as contemplated above, in order to permit such Indebtedness to be secured by a valid, perfected Lien (with such priority as may be designated by the Applicable Borrower or relevant Restricted Subsidiary, to the extent such priority is permitted by the Loan Documents), and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof.
Appears in 1 contract
The Agents. SECTION 7.01. In order to expedite the transactions contemplated by this Agreement, JPMCB CUSA is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Paying Agent on behalf of the Lenders and each Issuing BankJPMCB and CUSA are hereby appointed to act as Administrative Agents on behalf of the Lenders. The Administrative Agents do not assume any responsibility or obligation under this Agreement or any duties as agents for the Lenders. The title "Administrative Agent" implies no fiduciary obligation on the part of any Administrative Agent to any Person and the use of such title does not impose on any Administrative Agent any duties under this Agreement. Each of the Lenders, Lenders hereby authorizes each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents Agent to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Paying Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Revolving Credit Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Paying Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Paying Agent. Without limiting It is understood that the generality Agent Parties, the Co-Syndication Agents and the Co-Documentation Agents shall not have any duties or obligations except those expressly set forth herein. Neither any Agent Party nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower of any of the foregoingterms, if conditions, covenants or agreements contained in this Agreement. No Agent Party shall be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. Each Agent Party may deem and treat the Lender which makes any Revolving Credit Loan as the holder of the indebtedness resulting therefrom for all applicable mandatory prepayments purposes hereof until, in the case of the Paying Agent, the Paying Agent shall have received notice from such Lender or, in the case of any other Agent Party, such Agent Party shall have received notice from the Paying Agent that it received such notice from such Lender, in each case, given as provided herein, of the transfer thereof. Each Agent Party shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent Party shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. Neither any Agent Party nor any of its directors, officers, employees or agents shall have any responsibility to the Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrower of any of their respective obligations hereunder or in connection herewith. Each Agent Party may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that each Agent shall be under Section 2.10(c) no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Paying Agent as provided below, any Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation of the Paying Agent, the Required Lenders shall have the right to appoint a successor Paying Agent acceptable to the Borrower. If no successor shall have been made or arrangements therefor satisfactory to so appointed by the Administrative Agent Required Lenders and shall have been entered intoaccepted such appointment within 30 days after the retiring Paying Agent gives notice of its resignation, then the Administrative retiring Paying Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under may, on behalf of the other Loan DocumentsLenders, in the event that all the capital stock of such Guarantor appoint a successor Paying Agent which shall be solda bank with an office in New York, transferred New York, having a combined capital and surplus of at least $500,000,000 or otherwise disposed of to a Person that is not an Affiliate of any such bank. Upon the Company acceptance of any appointment as a Paying Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent and the retiring Paying Agent shall be discharged from its duties and obligations hereunder. After any Agent's resignation hereunder, the provisions of this Article and Section 8.05 shall continue in a transaction permitted effect for its benefit in respect of any actions taken or omitted to be taken by Section 6.03it while it was acting as an Agent. With respect to any the Revolving Credit Loans made by it hereunder, each any Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents each Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents Each Lender agrees (i) to reimburse the Paying Agent, on demand, in the amount of its Pro Rata Share of any expenses incurred for the benefit of the Lenders by such Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated been reimbursed by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02)Borrower, and (cii) except as expressly set forth to indemnify and hold harmless each Agent Party and any of its directors, officers, employees or agents, on demand, in the Loan Documentsamount of such Pro Rata Share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as an Agent Party or any of them in any way relating to or arising out of this Agreement or any action taken or omitted by it or any of them under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that no Agent shall have any duty to disclose, and no Agent Lender shall be liable to any Agent Party for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the failure to disclose, any information relating to the Company gross negligence or willful misconduct of such Agent Party or any of its Subsidiaries directors, officers, employees or agents. Each Lender agrees to indemnify the Issuing Banks (to the extent not promptly reimbursed by the Borrower) from and against such Lender's ratable share (determined as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that is communicated may be imposed on, incurred by, or asserted against any such Issuing Bank in any way relating to or obtained by the institution serving as Agent arising out of this Agreement or any of its Affiliates action taken or omitted by such Issuing Bank hereunder or in any capacity. No Agent connection herewith; provided, however, that no Lender shall be liable for any action taken portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or not taken by it with the consent or at the request of the Required Lenders disbursements either (or i) resulting from such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own Issuing Bank's gross negligence or wilful misconductwillful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction or (ii) relating to the reimbursement of any draw under a Letter of Credit paid after the date on which the Lenders' obligations to purchase or hold participations in Letters of Credit has terminated in accordance with Section 2.03(b). No Agent Without limitation of the foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon demand for its ratable share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Borrower under Section 8.05, to the extent that such Issuing Bank is not promptly reimbursed for such costs and expenses by the Borrower. For purposes of this paragraph, each Lender's respective ratable share of any amount shall be deemed determined, at any time, according to the sum of (i) the aggregate principal amount of the Revolving Credit Loans outstanding at such time and owing to such Lender, (ii) such Lender's respective Pro Rata Share of the aggregate Available Amount of all Letters of Credit outstanding at such time and (iii) such Lender's respective Unused Commitment at such time; provided that the aggregate principal amount of Revolving Credit Loans owing to the Issuing Banks as a result of drawings under Letters of Credit shall be considered to be owed to the Lenders ratably in accordance with their respective Revolving Credit Commitments (or, if the Revolving Credit Commitments have knowledge expired or been terminated, in accordance with clause (ii) of the definition of "Pro Rata Share"). The failure of any Default unless and until written notice thereof is given Lender to reimburse any such Issuing Bank promptly upon demand for its ratable share of any amount required to be paid by the Lenders to such Agent by the Company or a LenderIssuing Bank as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse such Issuing Bank for its ratable share of such amount, and but no Agent Lender shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents failure of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) Lender to reimburse any such Issuing Bank for such other Lender's ratable share of such amount. Without prejudice to the performance or observance survival of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness agreement of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation Lender hereunder, the provisions agreement and obligations of each Lender contained in the prior two paragraphs of this Article Section 7.01 shall survive the payment in full of principal, interest and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agentall other amounts payable hereunder. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent Party or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent Party or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Agreement (At&t Corp)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, JPMCB Inc. is hereby appointed to act as Administrative AgentAgent and the U.S. Collateral Agent on behalf of the U.S. Lenders, and JPMEL Citibank International plc is hereby appointed to act as London Agent, the U.K. Administrative Agent and Citicorp Trustee Company Limited is hereby appointed to act as the Euro Collateral Agent on behalf of the Lenders and each Issuing BankRevolving Euro Lenders. Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and(it being understood that with respect to the Euro Collateral Agent, only to the extent expressly provided herein, set forth in the London Agent are Euro Intercreditor Agreement) is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, and all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to any of the Company Borrowers of any Default or Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrowers pursuant to this Agreement or the other Loan Documents as received by the Administrative such Agent. Without limiting the generality None of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release Agents nor any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor their Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with any of them except to the consent extent finally judicially determined to have resulted from its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Agent also may rely upon None of the Agents nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrowers. Upon any such resignation, the Required Requisite Lenders shall have the right, in consultation with the Company, right to appoint a successor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500.0 million or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 10.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Crown Holdings or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Each Lender hereby authorizes the Collateral Agents to enter into the U.S. Intercreditor Agreement and the Euro Intercreditor Agreement, the Receivables Intercreditor Agreement, the Sharing Agreement and each Security Document on behalf of such Lender and to exercise its rights and perform its obligations thereunder. Each of the Revolving Euro Lenders further agrees to supply the U.K. Administrative Agent with any information required by it in order to calculate the Mandatory Cost in accordance with Exhibit U in respect of Eurocurrency Borrowings denominated in Pounds Sterling or Euros. Notwithstanding anything to the contrary in this Agreement, none of the Term B Arranger, Joint Lead Arrangers, the Syndication Agent, the Co-Documentation Agents or the Senior Managing Agent, in such capacities, shall have any obligations, duties or responsibilities, and shall incur no liabilities, under this Agreement or any other Loan Document. Each of the Lenders represents to the Agents only that neither the execution and delivery of the Security Documents by the Administrative Agent and the U.K. Administrative Agent on behalf of such Lender nor the performance thereof by the Administrative Agent and the U.K. Administrative Agent on behalf of such Lender will conflict with or create a default or violation under (a) such Lender’s organizational documents, (b) any other agreement, instrument or document that such Lender is a party to or (c) any applicable law, rule, regulation, order, decree or judgment. Each Revolving Euro Lender and any New Term Euro Lender appoints and designates the U.K. Administrative Agent as the Person holding the power of attorney (“fondé de pouvoir”) within the meaning of Article 2692 of the Civil Code of Quebec for the purposes of the hypothecary security to be granted by each of CROWN Metal Packaging Canada LP, CROWN Metal Packaging Canada Inc. and 3079939 Nova Scotia Company/3079939 Compagnie de la Nouvelle Ecosse pursuant to those deeds of hypothec in the Province of Quebec and, in such capacity, the U.K. Administrative Agent shall hold the hypothecs granted in the Province of Quebec for the benefit of the Revolving Euro Lenders and any New Term Euro Lenders and shall act as their agent in the exercise of the rights conferred thereunder. Each Lender further acknowledges that the first issue of 25% Collateral Demand Mortgage Debentures to be issued pursuant to the Deed of Hypothec may be purchased from the grantor of such hypothec by CROWN Metal Packaging Canada LP, CROWN Metal Packaging Canada Inc. or 3079939 Nova Scotia Company/3079939 Compagnie de la Nouvelle Ecosse by underwriting, purchase, subscription or otherwise notwithstanding the terms of Section 32 of the Act respecting the Special Power of Legal Persons (Quebec).
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender Lenders and each the Issuing Bank Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of Loans and the LC Disbursements and all other amounts due to the Lenders and Issuing Lenders hereunder, and promptly to distribute to each Lender or and Issuing Bank Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Westinghouse of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Westinghouse pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality Neither any Agent nor any of the foregoingits directors, if all applicable mandatory prepayments under Section 2.10(c) shall have been made officers, employees or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent agents shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by Westinghouse of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth contained in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agentthis Agreement. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and The Agents shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and responsible to the Related Parties of each Agent and any such sub-agentLenders for the due execution, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphgenuineness, any Agent may resign at any time by notifying the Lendersvalidity, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, enforceability or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions effectiveness of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB CSFB is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and each Issuing BankBanks (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the "Agents"). Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing BankBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC L/C Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company Borrower or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is Agents are hereby expressly authorized to release execute any Guarantor from and all documents (including releases) with respect to the Collateral and the Guarantee Agreements and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement, the Security Documents and the Guarantee Agreements, and the Agents are hereby expressly authorized to rely on any certificate delivered by the Borrowers as to adverse tax consequences, third party consent requirements, expenses, regulatory consequences or other matters relating to the Collateral and Guarantee Requirement, including any certificate delivered under Section 4.02(h), 5.03(d) or 9.08(b). Neither the Agents nor any of their respective directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its obligations hereunder and under or his own gross negligence or wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower or any other Loan Party of any of the terms, conditions, covenants or agreements contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents, instruments or agreements. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the event that absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. Neither the Agents nor any of their respective directors, officers, employees or agents shall have any responsibility to the Borrower or any other Loan Party on account of the failure of or delay in performance or breach by any Lender or Issuing Bank of any of its obligations hereunder or to any Lender or Issuing Bank on account of the failure of or delay in performance or breach by any other Lender or Issuing Bank or the Borrower or any other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the capital stock advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such Guarantor counsel. The Lenders hereby acknowledge that neither Agent shall be soldunder any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, transferred either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders, acting jointly with the Borrower if no Event of Default shall have occurred and be continuing, shall have the right to appoint a successor. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or otherwise disposed of to a Person that is not an Affiliate of any such bank. Upon the Company acceptance of any appointment as Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 9.05 shall continue in a transaction permitted effect for its benefit in respect of any actions taken or omitted to be taken by Section 6.03it while it was acting as Agent. With respect to any the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Borrower or any Subsidiary of the Subsidiaries or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf SECTION 8.1. Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably appoints the Administrative Agent, the Documentation Agent and the Syndication Agents as its agents, in each agent's capacity as such agent, and authorizes the Administrative Agent, the Documentation Agent and the Syndication Agents to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Administrative Agent, the Documentation Agent and the Syndication Agents by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents bank serving as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Documentation Agent is hereby expressly authorized to release any Guarantor from its obligations and the Syndication Agents, as the case may be, hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an the Administrative Agent, the Documentation Agent or the Syndication Agents, and the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an the Administrative Agent, the Documentation Agent or the Syndication Agents hereunder. The Agents Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, (a) no the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents hereby that the Administrative Agent, the Documentation Agent or a Syndication Agent, as the case may be, is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.2), and (c) except as expressly set forth in herein, the Loan DocumentsAdministrative Agent, no the Documentation Agent or the Syndication Agents, as the case may be, shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution bank serving as Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, or any of its Affiliates in any capacity. No The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.2) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Company Borrowers or a Lender, and no the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereinherein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be. Each The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be. Each The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, and any such sub-agentagent of such Related Parties, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Administrative Agent, Documentation Agent or Syndication Agents, as the case may be. Subject to the appointment and acceptance of a successor Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, as provided in this paragraph, any (a) the Administrative Agent, the Documentation Agent or a Syndication Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyCompany and (b) the Required Lenders may remove the Administrative Agent in the event of the Administrative Agent's gross negligence or willful misconduct. Upon any such resignationresignation or removal, the Required Lenders shall have the right, in consultation with the CompanyCompany (so long as no Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, gives notice of its resignation, then the retiring Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank; provided that such successor Administrative Agent shall have total assets of not less than $10,000,000,000. Upon the acceptance of its appointment as Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, and the retiring Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the resignation of the Administrative Agent's resignation hereunder, Documentation Agent or a Syndication Agent, as the case may be, the provisions of this Article and Section 10.03 9.3 shall continue in effect for the benefit of such retiring Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent, Documentation Agent or Syndication Agent, as the case may be. Each Lender acknowledges that it has, independently and without reliance upon the Agents Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Canadian Administrative Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Canadian Administrative Agent are hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations hereunder and under the other Loan Documents, Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not other than the Company or an Affiliate of the Company in a transaction permitted not prohibited by Section 6.03this Agreement. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent and the Canadian Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. With respect to any the Loans made by it hereunderunder this Agreement, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent under the Loan Documents and without any duty to account therefor to the Lenders. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents, and their duties under the Loan Documents shall be administrative in nature. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary expressly provided for herein or in the other Loan Documents); provided that such Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under the circumstances as provided any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in Section 10.02)violation of any Debtor Relief Law, and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence negligence, bad faith or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a LenderBorrower, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or thereintherein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and in good faith believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender, each Agent may presume that such condition is satisfactory to such Lender unless such Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. Each Agent may consult with legal counsel (who may be counsel for the Companyany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs this Article shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Agent. In taking any discretionary action hereunder, or in determining whether any provision hereof is applicable to any event, transaction or circumstance, the Administrative Agent may, in its discretion, but shall not be required (unless required by any other express provision hereof) to, communicate such proposed action or determination to the Lenders prior to taking or making the same, and shall be entitled (subject to any otherwise applicable requirement of Section 10.02(b)), in the absence of any contrary communication received from any Lender within a reasonable period of time specified in such communication from the Administrative Agent, to assume that such proposed action or determination is satisfactory to such Lender. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the Company. Upon any such resignation, the Company shall have the right, with the consent of the Required Lenders (not to be unreasonably withheld or delayed), to appoint a successor; provided, that if a Default has occurred and is continuing, the Required Lenders, and not the Company, shall have the right, in consultation with the Company, to appoint a such successor. If no successor shall have been so appointed by the Company (or, if applicable, the Required Lenders Lenders) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent maymay (but shall not be obligated to), on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be a bank with an office in New York, New YorkYork or Toronto or London, as applicable, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. To the extent required by any applicable law, each Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 2.16, each Lender shall indemnify and hold harmless each Agent against, and shall make payable in respect thereof within 10 days after written demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for such Agent) incurred by or asserted against such Agent by the United States Internal Revenue Service or any other Governmental Authority as a result of the failure of such Agent to properly withhold Tax from amounts paid to or for the account of such Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify such Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective) unless such failure was due to the gross negligence or willful misconduct of such Agent. A certificate as to the amount of such payment or liability delivered to any Lender by such Agent shall be conclusive absent manifest error. Each Lender hereby authorizes each Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due such Agent under this Article. The agreements in this Article shall survive the resignation and/or replacement of each Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Anything herein to the contrary notwithstanding, none of the Arrangers shall have any duties or obligations under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as an Agent or a Lender hereunder. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, each Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether such Agent shall have made any demand on the applicable Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Agents (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Agents and their respective agents and counsel and all other amounts due the Lenders and the Agents) allowed in such judicial proceeding and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the applicable Agent and, in the event that an Agent shall consent to the making of such payments directly to the Lenders, to pay to such Agent any amount due for the reasonable compensation, expenses, disbursements and advances of such Agent and its agents and counsel, and any other amounts due such Agent. Nothing herein shall be deemed to give the Agents the right to vote the claim of any Lender in any such proceeding pursuant to such Debtor Relief Law.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB The Chase Manhattan Bank is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and each the Issuing BankBank and BNY is hereby appointed as Documentation Agent on behalf of the Lenders (the Administrative Agent, the Collateral Agent and the Documentation Agent are referred to collectively as the "Agents"). Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank Lender, hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such the Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks Bank all payments of principal of and interest on the Loans, all payments in respect of LC L/C Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or the Issuing Bank on the due date therefor its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute promptly to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is Agents are hereby expressly authorized to release execute any Guarantor from its obligations hereunder and under all documents (including releases) with respect to the other Loan Documents, in Collateral and the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate rights of the Company Secured Parties with respect thereto, as contemplated by and in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have accordance with the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, provisions of this Agreement and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Security Documents. Without limiting Neither the generality Agents nor any of the foregoingtheir respective directors, (a) no Agent shall be subject to any fiduciary officers, employees or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent agents shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower or any other Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt Loan Documents or other instruments or agreements. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, in the case of items expressly required to any matter requiring the approval of all the Lenders, in accordance with written instructions signed by all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be delivered to such Agentbinding on all the Lenders. Each Agent shall shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Neither the Agents nor any of their respective directors, officers, employees or agents shall have any responsibility to the Borrower or any other Loan Party on account of the failure of or delay in performance or breach by any Lender or the Issuing Bank of any of its obligations hereunder or to any Lender or the Issuing Bank on account of the failure of or delay in performance or breach by any other Lender or the Issuing Bank or the Borrower or any other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent also of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with reasonable care with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint a successor, which successor shall be reasonably acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.100
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this AgreementAgreement and the other Credit Documents, JPMCB JPMorgan Chase Bank, N.A. is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankBanks. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Banks hereby irrevocably authorizes the Agents Administrative Agent to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof or of the Loan Documentsany other Credit Document, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC any L/C Disbursements and all other amounts due to the Lenders Banks hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders Banks to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender Bank copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality Neither any Agent nor any of the foregoingits directors, if all applicable mandatory prepayments under Section 2.10(c) shall have been made officers, employees or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent agents shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document contained in this Agreement or any other agreementCredit Document. Neither Agent shall be responsible to the Banks for the due execution, instrument genuineness, validity, enforceability or documenteffectiveness of this Agreement, any other Credit Document or other instruments or agreements. The Administrative Agent may deem and treat the Bank which makes any Loan or the Issuing Bank which issues any Letter of Credit, as the case may be, as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Bank or Issuing Bank, as the case may be, given as provided herein, of the transfer thereof. The Administrative Agent shall in all cases be fully protected in acting, or (v) refraining from acting, in accordance with written instructions signed by the satisfaction Required Banks and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Banks. The Administrative Agent shall, in the absence of any condition set forth in Article IV or elsewhere in any Loan Documentknowledge to the contrary, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Neither the Administrative Agent also nor any of its directors, officers, employees or agents shall have any responsibility to the Borrower on account of the failure of or delay in performance or breach by any Bank of any of its obligations hereunder or to any Bank on account of the failure of or delay in performance or breach by any other Bank or the Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur all matters arising hereunder or under any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, Credit Document and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Banks hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement or any other Credit Document unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Banks. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders Banks shall have the right, in consultation with the Company, right to appoint a successorsuccessor Administrative Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders Banks and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 10.03 11.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. With respect to the Loans made by it hereunder or the Letters of Credit issued by or participated in by it hereunder, as the case may be, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Bank and may exercise the same as though it were not Agent, and each Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender Bank agrees (i) to reimburse each Agent, on demand, in the amount of its pro rata share (based on its Commitment Percentage hereunder) of any expenses incurred for the benefit of the Banks by such Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Banks, which shall not have been reimbursed by the Borrower, and (ii) to indemnify and hold harmless each Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement, any other Credit Document or any action taken or omitted by it or any of them under this Agreement or any other Credit Document to the extent the same shall not have been reimbursed by the Borrower; PROVIDED that no Bank shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Bank acknowledges that it has, independently and without reliance upon the Agents Administrative Agent or any other Lender Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Bank also acknowledges that it will, independently and without reliance upon the Agents Administrative Agent or any other Lender Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or related agreement or any document furnished hereunder or thereunder. Neither the Documentation Agent nor the Syndication Agent shall have any duties or responsibilities in its capacity as such.
Appears in 1 contract
Samples: Lucent Technologies Inc
The Agents. In order to expedite the transactions contemplated by this AgreementSECTION 8.01. The Agents. Citicorp North America, JPMCB Inc. is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to any of the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrowers pursuant to this Agreement or the other Loan Documents as received by the Administrative such Agent. Without limiting the generality None of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release Agents nor any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor their Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not omitted to be taken by it with any of them except to the consent extent finally judicially determined to have resulted from its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Agent also may rely upon None of the Agents nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrowers. Upon any such resignation, the Required Requisite Lenders shall have the right, in consultation with the Company, right to appoint a successor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500.0 million or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's resignation hereunder, the provisions of this Article and Section 10.03 9.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CSFB and DBTCA as Co-Syndication Agents, CSFB and CGMI, as Joint Lead Arrangers and Joint Bookrunners, nor CoBank, as Documentation Agent, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Consolidated Communications Texas Holdings, Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations hereunder and under the other Loan Documents, Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not other than the Company or an Affiliate of the Company in a transaction permitted not prohibited by Section 6.036.04. With respect to any the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Borrower (in which case such Agent shall give written notice to each other Lender), and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and in good faith believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Companyany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility facilities provided for herein as well as activities as Agent. In taking any discretionary action hereunder, or in determining whether any provision hereof is applicable to any event, transaction or circumstance, the Administrative Agent may, in its discretion, but shall not be required (unless required by any other express provision hereof) to, communicate such proposed action or determination to the Lenders prior to taking or making the same, and shall be entitled (subject to any otherwise applicable requirement of Section 10.02(b)), in the absence of any contrary communication received from any Lender within a reasonable period of time specified in such communication from the Administrative Agent, to assume that such proposed action or determination is satisfactory to such Lender. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with (so long as no Default has occurred and is continuing) the Companyconsent of the Company (not to be unreasonably withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be a bank with an office in New York, New YorkYork or London, as applicable, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Loan Party and (b) to indemnify and hold harmless each Agent and any of its Related Parties, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Loan Party; provided that no Lender shall be liable to an Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The institutions named as Syndication Agent and as Co- Documentation Agents in the heading of this Agreement shall not, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
The Agents. In order to expedite Each Lender hereby irrevocably designates and appoints the transactions contemplated by Agents as the agents of such Lender under this AgreementAgreement and the other Loan Documents, JPMCB is hereby appointed to act as Administrative and each Lender irrevocably authorizes each Agent, and JPMEL is hereby appointed to act as London Agentin such capacity, on behalf of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions action on its behalf under the provisions of such Lender or assignee or such Issuing Bank this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Agents such Agent by the terms of this Agreement and the other Loan Documents, together with such actions and other powers as are reasonably incidental thereto. Each Lender that holds Term B Loans or has Term B Commitments and each Qualified Counterparty (in each case, in its capacity as such) hereby irrevocably designates and appoints the Collateral Agent as an agent of such Person under this Agreement and each other Loan Document to which the Collateral Agent is a party. In addition, without hereby limiting any implied authority, each Lender hereby expressly authorizes and directs the Collateral Agent to enter into the Intercreditor and Subordination Agreement and each other Loan Document to which it is a party as its agent. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to any of the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrowers pursuant to this Agreement or the other Loan Documents as received by the Administrative such Agent. Without limiting the generality None of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release Agents nor any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor their Related Parties shall be sold, transferred or otherwise disposed of liable to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable such for any action taken or not omitted to be taken by it with any of them except to the consent extent finally judicially determined to have resulted from its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful willful 138 misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other than to confirm receipt of items expressly required to be delivered to such AgentLoan Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. Each Agent also may rely upon None of the Agents nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it to be made by any other Lender or the proper Person, and shall not incur Loan Parties of any liability for relying thereonof their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel. The Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the Requisite Lenders. The Collateral Agent hereby agrees that it holds and will hold all of its right, accountants title and interest in, to and under the Security Documents and the Collateral granted to the Collateral Agent thereunder whether now existing or expertshereafter arising (all such right, title and interest being hereinafter referred to as the "Collateral Estate") under and subject to the conditions set forth in this Agreement; and the Collateral Agent further agrees that it will hold such Collateral Estate for the benefit of the Secured Parties, for the enforcement of the payment of all Obligations (subject to the limitations and priorities set forth herein and in the respective Security Documents) and as security for the performance of and compliance with the covenants and conditions of this Agreement and each of the Security Documents. Each All of the powers, remedies and rights of the Collateral Agent as set forth in this Agreement may perform be exercised by the Collateral Agent in respect of any Security Document as though set forth in full therein and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent powers, remedies and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication rights of the revolving credit facility provided for Collateral Agent as set forth in any Security Document may be exercised from time to time as herein as well as activities as Agentand therein provided. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow and subject to the next succeeding paragraph with respect to the Collateral Agent, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrowers. Upon any such resignation, the Required Requisite Lenders shall have the right, in consultation with the Company, right to appoint a successor. If 139 no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500.0 million or an Affiliate of any such bank. Upon the acceptance of its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's resignation hereunder, the provisions of this Article and Section 10.03 10.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Spirit AeroSystems Holdings, Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf Each of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Banks hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Agents by the terms hereof and of the Loan other Credit Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to bank or banks serving as the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations Agents hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers in their capacity as Lenders or Issuing Banks as any other Lender or Issuing Bank and may exercise the same as though it they were not an AgentAgents, and the Agents such bank or banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Borrower or any Subsidiary or other Affiliate thereof as if it they were not an AgentAgents hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, foregoing (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents hereby that the Agent is Agents are required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02)Majority Lenders, and (c) except as expressly set forth in herein, the Loan Documents, no Agent Agents shall not have any duty to disclose, and no Agent shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacitySubsidiary. No Agent The Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Majority Lenders (or such other number or percentage of the Lenders Lenders, as shall be necessary under the circumstances as provided in Section 10.02) case may be, or in the absence of its their own gross negligence or wilful willful misconduct. No Agent In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Agents by the Company Borrower or a LenderLender or Issuing Bank, and no Agent the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document, document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein or therein, other than to confirm receipt of items expressly required to be delivered to such Agentthe Agents. Each Agent The Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it them to be genuine and to have been signed or sent by the proper Person. Each Agent The Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for the CompanyBorrower), independent accountants and other experts selected by itthem with reasonable care, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. Each Agent The Agents may perform any and all its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such Agentthe Agents. Each Agent The Agents and any such sub-agent may perform any and all its their duties and exercise its their rights and powers through their respective Related PartiesAffiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties Affiliates of each Agent the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Required Majority Lenders shall have the right, in consultation with the Company, right to appoint a successorsuccessor with the Borrower’s written consent (which shall not be unreasonably withheld or delayed and shall not be required from the Borrower if an Event of Default has occurred and is continuing). If no successor shall have been so appointed by the Required Majority Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders Lenders, with the Borrower’s written consent (which shall not be unreasonably withheld or delayed and the Issuing Banksshall not be required if an Event of Default has occurred and is continuing), appoint a successor Agent which shall be a bank or an Affiliate thereof, in each case with a net worth of at least $1,000,000,000 and an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the an Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Agents or any other Lender or Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding any other provision contained herein, (a) each Lender and each Issuing Bank acknowledges that the Administrative Agent is not acting as an agent of the Borrower and that the Borrower will not be responsible for acts or failures to act on the part of the Administrative Agent and (b) none of the Syndication Agents, Documentation Agents, Senior Managing Agents or Managing Agents shall, in its capacity as such, have any responsibilities, fiduciary or otherwise, to the Borrower, to any Lender or to any other Person under this Agreement or the other Credit Documents. Without prejudice to the provisions of this Article VIII, each Lender and Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) to act as the Person holding the power of attorney (in such capacity, the “fondé de pouvoir”) of the Lenders and Issuing Banks as contemplated under Article 2692 of the Civil Code of Quebec, and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties which are conferred upon the fondé de pouvoir under any hypothec. Moreover, without prejudice to such appointment and authorization to act as the Person holding the power of attorney as aforesaid, each Lender and Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) (in such capacity, the “Custodian”) to act as agent and custodian for and on behalf of the Lenders and Issuing Banks to hold and to be the sole registered holder of any debenture which may be issued under any hypothec, the whole notwithstanding Section 32 of the Act Respecting the Special Powers of Legal Persons (Quebec) or any other applicable law. In this respect, (i) the Custodian shall keep a record indicating the names and addresses of, and the pro rata portion of the obligations and indebtedness secured by any pledge of any such debenture and owing to each Lender and Issuing Bank and (ii) each Lender and Issuing Bank will be entitled to the benefits of any charged property covered by any hypothec and will participate in the proceeds of realization of any such charged property, the whole in accordance with the terms hereof. Each of the fondé de pouvoir and the Custodian shall (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to fondé de pouvoir and the Custodian (as applicable) with respect to the charged property under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise, (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Lenders or the Issuing Banks, and (c) be entitled to delegate from time to time any of its powers or duties under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise and on such terms and conditions as it may determine from time to time. Any Person who becomes a Lender or an Issuing Bank shall be deemed to have consented to and confirmed: (y) the fondé de pouvoir as the Person holding the power of attorney as aforesaid and to have ratified, as of the date it becomes a Lender or Issuing Bank, all actions taken by the fondé de pouvoir in such capacity, and (z) the Custodian as the agent and custodian as aforesaid and to have ratified, as of the date it becomes a Lender or Issuing Bank, all actions taken by the Custodian in such capacity.
Appears in 1 contract
Samples: Assignment and Assumption (Goodyear Tire & Rubber Co /Oh/)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB Texas Commerce Bank National Association is hereby appointed to act as Administrative Agent, and JPMEL Chemical Bank is hereby appointed to act as London CAF Agent, on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender and each Issuing Bank Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank holder and to exercise such powers as are specifically delegated to the Agents by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing Bankthe CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks CAF Agent all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender or Issuing Bank and the CAF Agent its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as No Agent or any of its Affiliates in any capacity. No Agent directors, officers, employees or agents shall be liable as such for any action taken or not taken omitted by it with the consent any of then except for its or at the request of the Required Lenders (his or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its her own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company , or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in herein or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith herewith, or therewith, (iii) be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower of any of the covenantsterms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other terms instruments or conditions set forth herein or therein, (iv) agreements. The Agents may deem and treat the validity, enforceability, effectiveness or genuineness of Lender which makes any Loan Document or any other agreementas the holder of the indebtedness resulting therefrom for all 61 57 purposes hereof until it shall have received notice from such Lender, instrument or documentgiven as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or (v) refraining from acting, in accordance with written instructions signed by the satisfaction of Required Lenders and, except as otherwise specifically provided herein, such instructions and any condition set forth in Article IV action or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to inaction pursuant thereto shall be delivered to such Agentbinding on all the Lenders. Each Agent shall of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Personperson or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or the Borrower of any of their respective obligations hereunder or in connection herewith. Each Agent also of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint a successorsuccessor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be Agent, having a bank with an office in New York, New York, combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its any appointment as Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent 62 58 and the retiring Agent shall be discharged from its duties and obligations hereunder. After the any Agent's resignation hereunder, the provisions of this Article and Section 10.03 8.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Agent. With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrower and (ii) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and 63 59 information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Facility Agreement (Texas Utilities Electric Co)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and each Issuing BankLenders. Each of the Lenders, each assignee of any such Lender Lenders and each the Issuing Bank Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each the Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks Lenders all payments of principal of and interest on the Loans, all payments in respect of Loans and the LC Disbursements and all other amounts due to the Lenders and the Issuing Lenders hereunder, and promptly to distribute to each Lender or and Issuing Bank Lender its proper share of each payment so received; , (b) to give notice on behalf of each of the Lenders to the Company Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; hereunder and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting Neither any Agent nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the generality contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the foregoingterms, if all applicable mandatory prepayments under Section 2.10(c) shall have been made conditions, covenants or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, agreements contained in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agentthis Agreement. The Agents shall not have any duties be responsible to the Lenders for the due execution, genuineness, validity, enforceability or obligations except those expressly set forth in the Loan Documentseffectiveness of this Agreement or other instruments or agreements. Without limiting the generality None of the foregoing, (a) no Agent Agents or the Borrowers shall be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, (b) and no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by provision in the Loan Documents that and no course of dealing between the parties hereto shall be deemed to create any fiduciary duty owing to any Agent, any Lender, any Borrower or any Subsidiary, or any of their respective Affiliates, by any party hereto. The Administrative Agent is required to exercise upon receipt of notice shall in writing all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or such other number or percentage of inaction pursuant thereto shall be binding on all the Lenders as shall be necessary under and the circumstances as provided in Section 10.02)Issuing Lenders. The Administrative Agent shall, and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed knowledge to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lendercontrary, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any Lender or Issuing Lender of any of its obligations hereunder or to any Lender or Issuing Lender on account of the failure of or delay in performance or breach by any other Agent, any other Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory Lenders and the Issuing Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, right to appoint from the Lenders a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint from the Lenders a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank, which successor shall be acceptable to ViacomCBS (such acceptance not to be unreasonably withheld). Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Administrative Agent's ’s resignation hereunder, the provisions of this Article and Section 10.03 9.5 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. With respect to the Loans made by them and their LC Exposure hereunder, the Agents in their individual capacity and not as Agents shall have the same rights and powers as any other Lender and may exercise the same as though they were not Agents, and the Agents and their affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of their respective Subsidiaries or any Affiliate thereof as if they were not Agents. Each Lender and Issuing Lender agrees (i) to reimburse the Administrative Agent in the amount of its pro rata share (based on its Total Facility Percentage or, after the date on which the Loans shall have been paid in full, based on its Total Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold harmless the Administrative Agent and any of its directors, officers, employees or agents, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement, to the extent the same shall not have been reimbursed by or on behalf of ViacomCBS; provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender and Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. None of the Documentation Agents, the Syndication Agents, the Joint Lead Arrangers, the Joint Bookrunners or any managing agent shall have any duties, liabilities or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (ViacomCBS Inc.)
The Agents. In order to expedite the transactions contemplated by this AgreementSECTION 8.01. The Agents. Citicorp North America, JPMCB Inc. is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders Lenders. Each Lender that holds Loans or has Commitments and each Issuing Bankholder of any Related Hedging Obligations and each person holding Overdraft Obligations (in each case, in its capacity as such) hereby irrevocably designates and appoints the Collateral Agent as an agent of such person under this Agreement and each other Loan Document to which the Collateral Agent is a party. Each of the Lenders, Lenders and each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to any of the Company Loan Parties of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by any of the Company Loan Parties pursuant to this Agreement as received by such Agent. None of the Agents nor any of their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the terms, conditions, covenants or agreements contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Party Documents or other instruments or agreements. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. None of the Agents nor any of their Related Parties shall have any responsibility to the Loan Parties on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may execute any and all duties hereunder by or through any of its Related Parties or any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to this Agreement or the other provisions of any Loan Documents as received Document unless it shall be requested in writing to do so by the Administrative AgentRequisite Lenders. Without limiting Subject to the generality appointment and acceptance of a successor Agent as provided below, any Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Requisite Lenders (with the consent of the foregoingBorrower, if all applicable mandatory prepayments under Section 2.10(cnot to be unreasonably withheld) shall have been made or arrangements therefor satisfactory the right to the Administrative Agent appoint a successor. If no successor shall have been entered intoso appointed by the Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the Administrative retiring Agent is hereby expressly authorized may (with the consent of the Borrower, not to release any Guarantor from its obligations hereunder be unreasonably withheld), on behalf of the Lenders and under the other Loan DocumentsIssuing Bank, in the event that all the capital stock of such Guarantor appoint a successor Agent which shall be solda bank with an office in New York, transferred New York, having a combined capital and surplus of at least $500.0 million or otherwise disposed of to a Person that is not an Affiliate of any such bank. Upon the Company acceptance of any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue in a transaction permitted effect for its benefit in respect of any actions taken or omitted to be taken by Section 6.03it while it was acting as an Agent. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent. In addition, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Borrower or any Subsidiary or other Affiliate thereof as if it any were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as AgentAgents. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI, as Sole Lead Arranger and Sole Bookrunner, nor Citicorp North America, Inc., as Syndication Agent, nor Citicorp Xxxxx Xxxxxxx, Inc., as Documentation Agent, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Polymer Group Inc)
The Agents. SECTION 7.01. In order to expedite the transactions contemplated by this Agreement, JPMCB CUSA is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Paying Agent on behalf of the Lenders and each Issuing BankJPMCB and CUSA are hereby appointed to act as Administrative Agents on behalf of the Lenders. The Administrative Agents do not assume any responsibility or obligation under this Agreement or any duties as agents for the Lenders. The title "Administrative Agent" implies no fiduciary obligation on the part of any Administrative Agent to any Person and the use of such title does not impose on any Administrative Agent any duties under this Agreement. Each of the Lenders, Lenders hereby authorizes each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents Agent to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents such Agent by the terms of the Loan Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Paying Agent and, to the extent expressly provided herein, the London Agent are is hereby expressly authorized by the Lenders and each Issuing BankLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements Revolving Credit Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company Borrower of any Event of Default specified in this Agreement of which the Administrative Paying Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Paying Agent. Without limiting It is understood that the generality Agent Parties and the Syndication Agent shall not have any duties or obligations except those expressly set forth herein. Neither any Agent Party nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower of any of the foregoingterms, if conditions, covenants or agreements contained in this Agreement. No Agent Party shall be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. Each Agent Party may deem and treat the Lender which makes any Revolving Credit Loan as the holder of the indebtedness resulting therefrom for all applicable mandatory prepayments purposes hereof until, in the case of the Paying Agent, the Paying Agent shall have received notice from such Lender or, in the case of any other Agent Party, such Agent Party shall have received notice from the Paying Agent that it received such notice from such Lender, in each case, given as provided herein, of the transfer thereof. Each Agent Party shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent Party shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. Neither any Agent Party nor any of its directors, officers, employees or agents shall have any responsibility to the Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrower of any of their respective obligations hereunder or in connection herewith. Each Agent Party may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that each Agent shall be under Section 2.10(c) no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Paying Agent as provided below, any Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation of the Paying Agent, the Required Lenders shall have the right to appoint a successor Paying Agent acceptable to the Borrower. If no successor shall have been made or arrangements therefor satisfactory to so appointed by the Administrative Agent Required Lenders and shall have been entered intoaccepted such appointment within 30 days after the retiring Paying Agent gives notice of its resignation, then the Administrative retiring Paying Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under may, on behalf of the other Loan DocumentsLenders, in the event that all the capital stock of such Guarantor appoint a successor Paying Agent which shall be solda bank with an office in New York, transferred New York, having a combined capital and surplus of at least $500,000,000 or otherwise disposed of to a Person that is not an Affiliate of any such bank. Upon the Company acceptance of any appointment as a Paying Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent and the retiring Paying Agent shall be discharged from its duties and obligations hereunder. After any Agent's resignation hereunder, the provisions of this Article and Section 8.05 shall continue in a transaction permitted effect for its benefit in respect of any actions taken or omitted to be taken by Section 6.03it while it was acting as an Agent. With respect to any the Revolving Credit Loans made by it hereunder, each any Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents each Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents Each Lender agrees (i) to reimburse the Paying Agent, on demand, in the amount of its Pro Rata Share of any expenses incurred for the benefit of the Lenders by such Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated been reimbursed by the Loan Documents that the Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02)Borrower, and (cii) except as expressly set forth to indemnify and hold harmless each Agent Party and any of its directors, officers, employees or agents, on demand, in the Loan Documentsamount of such Pro Rata Share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as an Agent Party or any of them in any way relating to or arising out of this Agreement or any action taken or omitted by it or any of them under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that no Agent shall have any duty to disclose, and no Agent Lender shall be liable to any Agent Party for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the failure to disclose, any information relating to the Company gross negligence or willful misconduct of such Agent Party or any of its Subsidiaries directors, officers, employees or agents. Each Lender agrees to indemnify the Issuing Banks (to the extent not promptly reimbursed by the Borrower) from and against such Lender's ratable share (determined as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that is communicated may be imposed on, incurred by, or asserted against any such Issuing Bank in any way relating to or obtained by the institution serving as Agent arising out of this Agreement or any of its Affiliates action taken or omitted by such Issuing Bank hereunder or in any capacity. No Agent connection herewith; provided, however, that no Lender shall be liable for any action taken portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or not taken by it with the consent or at the request of the Required Lenders disbursements either (or i) resulting from such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own Issuing Bank's gross negligence or wilful misconductwillful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction or (ii) relating to the reimbursement of any draw under a Letter of Credit paid after the date on which the Lenders' obligations to purchase or hold participations in Letters of Credit has terminated in accordance with Section 2.03(b). No Agent Without limitation of the foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon demand for its ratable share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Borrower under Section 8.05, to the extent that such Issuing Bank is not promptly reimbursed for such costs and expenses by the Borrower. For purposes of this paragraph, each Lender's respective ratable share of any amount shall be deemed determined, at any time, according to the sum of (i) the aggregate principal amount of the Revolving Credit Loans outstanding at such time and owing to such Lender, (ii) such Lender's respective Pro Rata Share of the aggregate Available Amount of all Letters of Credit outstanding at such time and (iii) such Lender's respective Unused Commitment at such time; provided that the aggregate principal amount of Revolving Credit Loans owing to the Issuing Banks as a result of drawings under Letters of Credit shall be considered to be owed to the Lenders ratably in accordance with their respective Revolving Credit Commitments (or, if the Revolving Credit Commitments have knowledge expired or been terminated, in accordance with clause (ii) of the definition of "Pro Rata Share"). The failure of any Default unless and until written notice thereof is given Lender to reimburse any such Issuing Bank promptly upon demand for its ratable share of any amount required to be paid by the Lenders to such Agent by the Company or a LenderIssuing Bank as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse such Issuing Bank for its ratable share of such amount, and but no Agent Lender shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents failure of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) Lender to reimburse any such Issuing Bank for such other Lender's ratable share of such amount. Without prejudice to the performance or observance survival of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness agreement of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation Lender hereunder, the provisions agreement and obligations of each Lender contained in the prior two paragraphs of this Article Section 7.01 shall survive the payment in full of principal, interest and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agentall other amounts payable hereunder. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent Party or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent Party or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (At&t Corp)
