Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) Each Lender hereby irrevocably designates and appoints GENERAL ELECTRIC CAPITAL CORPORATION as its Collateral Agent under this Agreement and the other Loan Documents and GENERAL ELECTRIC CAPITAL CORPORATION as Administrative Agent under this Agreement and the other Loan Documents. The provisions of this SECTION 13.01 are solely for the benefit of the Agents and Lenders and no Credit Party nor any other Person, other than permitted sub-agents, shall have any rights as a third-party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Loan Documents, each Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Credit Party or any other Person. No Agent shall have duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless otherwise provided, each Agent may execute its functions and duties under this Agreement and the other Loan Documents by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No Agent shall be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made without gross negligence or willful misconduct. The duties of each Agent shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted to be taken by it hereunder or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct. (b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document, then the Administrative Agent or the Collateral Agent, as the case may be, shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability to any Person by reason of so refraining. Each Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Loan Document (i) if such action would, in the opinion of such Agent, be contrary to law or the terms of this Agreement or any other Loan Document, (ii) if such action would, in the opinion of such Agent, expose such Agent to Environmental Liabilities and Costs or (iii) if such Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of Required Lenders or all affected Lenders, as applicable.
Appears in 1 contract
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) Each Lender hereby irrevocably designates and appoints GENERAL ELECTRIC CAPITAL CORPORATION Xxxxxx Xxxxxxx Senior Funding, Inc. as Administrative Agent under this Agreement and the other Loan Documents and Xxxxxx Xxxxxxx & Co., Incorporated as its Collateral Agent under this Agreement and the other Loan Documents and GENERAL ELECTRIC CAPITAL CORPORATION as Administrative Documents. Such Lender hereby irrevocably authorizes each such Agent to take such action on such Lender’s behalf under the provisions of this Agreement and the each other Loan DocumentsDocument and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Each such Agent agrees to act as such on the express conditions contained in this Article XIII. The provisions of this SECTION 13.01 Article XIII are solely for the benefit of the Agents Administrative Agent, the Collateral Agent and Lenders and no Credit Party the Lenders. Neither the Borrower nor any other Person, other than permitted sub-agents, Persons shall have any rights as a third-party beneficiary beneficiaries of any of the provisions hereofcontained herein; provided, however, that the right to consent to a successor Agent as provided under Section 13.08 also shall be for the benefit of the Borrower. In performing its functions and duties under Any provision to the contrary contained elsewhere in this Agreement and the or in any other Loan DocumentsDocument notwithstanding, each such Agent shall act solely as an agent of Lenders and does not assume and have any duties or responsibilities, except those expressly set forth herein, nor shall not each such Agent have or be deemed to have assumed any obligation toward fiduciary relationship with any Lender and no implied covenants, functions, responsibilities, duties, obligations or relationship of agency or trust with or for any Credit Party liabilities shall be read into this Agreement or any other Person. No Loan Document or otherwise exist against each such Agent; it being expressly understood and agreed that the use of the word “Agent” is for convenience only and that each such Agent shall have is merely the representative of the Lenders, and has only the contractual duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless Except as expressly otherwise providedprovided in this Agreement, each such Agent shall have and may execute use its functions and duties sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which such Agent is expressly entitled to take or assert under or pursuant to this Agreement and the other Loan Documents. No Lender shall have any right of action whatsoever against each such Agent as a result of such Agent acting or refraining from acting hereunder pursuant to such discretion and any action taken or failure to act pursuant to such discretion shall be binding on the Lenders. Without limiting the generality of the foregoing, or of any other provision of the Loan Documents that provides rights or powers to the Administrative Agent or the Collateral Agent, each Lender agrees that, as long as this Agreement remains in effect: (i) (A) the Administrative Agent shall have the right to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Loans, the Collections and related matters and (B) the Collateral Agent shall have the right to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Collateral and related matters; (ii) the Collateral Agent shall have the right to execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, NY12534:166729.34
(A) the Administrative Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to the Borrower, the Obligations, the Collections, or otherwise related to any of same as provided in the Loan Documents and (B) the Collateral Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to the Borrower, the Obligations, the Collateral, or otherwise related to any of the same as provided in the Loan Documents and (C) the Administrative Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to the Borrower, the Obligations, the Collateral or otherwise related to any of the same, as provided in the Loan Documents; and (vii) each of the Agents shall have the right to incur and pay such fees, charges, and expenses under the Loan Documents as such Agent reasonably may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents. The Administrative Agent may deem and treat the payee of any Obligation as the holder thereof for all purposes of the Loan Documents unless and until a notice of the assignment or transfer of such Obligation shall have been filed with the Administrative Agent. Each Lender further consents to (x) the execution, delivery, and performance by the Administrative Agent or the Collateral Agent of each Loan Document entered into by such Agent on behalf of the Lenders as contemplated by this Agreement, and (y) the terms of such Loan Documents.
(b) Except as otherwise provided in this Section 13.01, each of the Administrative Agent and the Collateral Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No None of the Administrative Agent and the Collateral Agent shall be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made in compliance with this section and without gross negligence or willful misconduct. The duties .
(c) None of each Agent the Agent-Related Persons shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not (i) be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted to be taken by it hereunder any of them under or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct.
(b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document, then the Administrative Agent Document or the Collateral Agent, as the case may be, shall transactions contemplated hereby (except for its own gross negligence or willful misconduct) or (ii) be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability responsible in any manner to any Person Lender for any recital, statement, representation or warranty made by reason any Credit Party or any Subsidiary or Affiliate of so refraining. Each Agent shall be fully justified any Credit Party, or any officer or director thereof, contained in failing this Agreement or refusing to take any action hereunder or under in any other Loan Document (i) if such action wouldDocument, or in the opinion of such Agentany certificate, be contrary report, statement or other document referred to law or provided for in, or received by any Agent under or in connection with, this Agreement or any other Loan Document, or the terms validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, (ii) if such action would, in the opinion or for any failure of such Agent, expose such Agent any Credit Party or any other party to Environmental Liabilities and Costs or (iii) if such Agent shall not first be indemnified any Loan Document to perform its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any NY12534:166729.34 other Loan Document in accordance with Document, or to inspect the instructions properties, books or records of Required Lenders the Borrower or all affected Lenders, as applicableany of its Subsidiaries.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Oppenheimer Holdings Inc)
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) Each member of the Lender Group hereby irrevocably designates and appoints GENERAL ELECTRIC CAPITAL CORPORATION Administrative Agent as its Collateral Agent administrative agent under this Agreement and the other Loan Documents and GENERAL ELECTRIC CAPITAL CORPORATION Collateral Agent as Administrative Agent its collateral agent under this Agreement and the other Loan Documents. Each member of the Lender Group hereby irrevocably authorizes each such Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Each such Agent agrees to act as such on the express conditions contained in this Article X. The provisions of this SECTION 13.01 Article X are solely for the benefit of the Agents Administrative Agent, Collateral Agent, and Lenders and no Credit Party nor any other Person, other than permitted sub-agents, the Lenders. Borrower shall not have any rights as a third-third party beneficiary of any of the provisions hereofcontained herein; provided, however, that certain of the provisions of Section 10.13 hereof also shall be for the benefit of Borrower. In performing its functions and duties under Any provision to the contrary contained elsewhere in this Agreement and the or in any other Loan DocumentsDocument notwithstanding, each such Agent shall act solely as an agent of Lenders and does not assume and have any duties or responsibilities, except those expressly set forth herein, nor shall not each such Agent have or be deemed to have assumed any obligation toward fiduciary relationship with any other member of the Lender Group, and no implied covenants, functions, responsibilities, duties, obligations or relationship of agency or trust with or for any Credit Party liabilities shall be read into this Agreement or any other Person. No Loan Document or otherwise exist against each such Agent; it being expressly understood and agreed that the use of the word "Agent" is for convenience only and that each such Agent shall have is merely the representative of the other members of the Lender Group, and has only the contractual duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless Except as expressly otherwise
(A) Administrative Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lender Group with respect to Borrower, the Obligations, the Collections, or otherwise providedrelated to any of same as provided in the Loan Documents, and (B) Collateral Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lender Group with respect to Borrower, the Obligations, the Collateral, or otherwise related to any of same as provided in the Loan Documents; and (vii) Administrative Agent and Collateral Agent each shall have the right to incur and pay such fees, charges, and expenses under the Loan Documents as such Agent reasonably may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents. Administrative Agent may deem and treat the payee of any Obligation as the holder thereof for all purposes of the Loan Documents unless and until a notice of the assignment or transfer of such Obligation shall have been filed with Administrative Agent. Each member of the Lender Group further consents to (y) the execution, delivery, and performance by Administrative Agent or Collateral Agent of each Loan Document entered into by such Agent on behalf of the Lender Group as contemplated by this Agreement, and (z) the terms of such Loan Documents.
(b) Except as otherwise provided in this section, each of Administrative Agent and Collateral Agent may execute any of its functions and duties under this Agreement and the or any other Loan Documents Document by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No Each of Administrative Agent and Collateral Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made in compliance with this section and without gross negligence or willful misconduct. The duties .
(c) None of each Agent the Agent-Related Persons shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not (i) be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted to be taken by it hereunder any of them under or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct.
(b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any members of the Lender Group for any recital, statement, representation or warranty made by Borrower or any Subsidiary or Affiliate of Borrower, or any officer or director thereof, contained in this Agreement or in any other Loan Document, then the or in any certificate, report, statement or other document referred to or provided for in, or received by Administrative Agent or the Collateral Agent, as the case may be, shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability to any Person by reason of so refraining. Each Agent shall be fully justified under or in failing connection with, this Agreement or refusing to take any action hereunder or under any other Loan Document (i) if such action wouldDocument, in the opinion of such Agent, be contrary to law or the terms validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or for any failure of Borrower or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any member of the Lender Group to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of Borrower or any of its Subsidiaries.
(d) Borrower (i) acknowledges that, contemporaneously herewith, the Former Administrative Agent and the Former Syndication Agent have resigned in their respective capacities as administrative agent and syndication agent under the Former Credit Agreement, and (ii) if such action wouldconsents (A) to the appointment of Administrative Agent in its capacity as administrative agent for the Lender Group hereunder, and (B) to the appointment of Collateral Agent in its capacity as collateral agent for the opinion of such Agent, expose such Agent to Environmental Liabilities and Costs or (iii) if such Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of Required Lenders or all affected Lenders, as applicableGroup hereunder.
Appears in 1 contract
Samples: Credit Agreement (Avado Brands Inc)
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) Each Lender hereby irrevocably designates and appoints GENERAL ELECTRIC CAPITAL CORPORATION Guggenheim Corporate Funding, LLC as Administrative Agent under this Agreement and the other Loan Documents and as its Collateral Agent under this Agreement and the other Loan Documents and GENERAL ELECTRIC CAPITAL CORPORATION as Administrative Documents. Such Lender hereby irrevocably authorizes each such Agent to take such action on its behalf under the provisions of this Agreement and the each other Loan DocumentsDocument and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Each such Agent agrees to act as such on the express conditions contained in this Article XII. The provisions of this SECTION 13.01 Article XII are solely for the benefit of the Agents Administrative Agent, the Collateral Agent and Lenders and no Credit Party the Lenders. Neither the Borrower nor any other Person, other than permitted sub-agents, Persons shall have any rights as a third-party beneficiary beneficiaries of any of the provisions hereofcontained herein; provided, however, that the right to consent to a successor Agent as provided under Section 12.08 also shall be for the benefit of the Borrower. In performing its functions and duties under Any provision to the contrary contained elsewhere in this Agreement and or in any other Loan Document notwithstanding, each such Agent shall not have any duties or responsibilities, except those expressly set forth herein or in the other Loan Documents, nor shall each such Agent shall act solely as an agent of Lenders and does not assume and shall not have or be deemed to have assumed any obligation toward fiduciary relationship with any Lender and no implied covenants, functions, responsibilities, duties, obligations or relationship of agency or trust with or for any Credit Party liabilities shall be read into this Agreement or any other Person. No Loan Document or otherwise exist against each such Agent; it being expressly understood and agreed that the use of the word “Agent” is for convenience only and that each such Agent shall have is merely the representative of the Lenders, and has only the contractual duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless Except as expressly otherwise providedprovided in this Agreement, each such Agent shall have and may execute use its functions and duties good faith business judgment with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which such Agent is expressly entitled to take or assert under or pursuant to this Agreement and the other Loan Documents. No Lender shall have any right of action whatsoever against each such Agent as a result of such Agent acting or refraining from acting hereunder pursuant to such good faith business judgment and any action taken or failure to act pursuant to such discretion shall be binding on the Lenders. Without limiting the generality of the foregoing, or of any other provision of the Loan Documents that provides rights or powers to the Administrative Agent or the Collateral Agent, each Lender agrees that, as long as this Agreement remains in effect: (i) (A) the Administrative Agent shall have the right to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Loans, the Collections and related matters and (B) the Collateral Agent shall have the right to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Collateral and related matters; (ii) the Collateral Agent shall have the right to execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents; (iii) the Agents shall have the right to exclusively receive, apply and distribute the Collections as provided in the Loan Documents; (iv) the Collateral Agent shall have the right to open and maintain such bank accounts and lock boxes as the Collateral Agent deems necessary and appropriate in accordance with the Loan Documents for the foregoing purposes with respect to the Collections and the Collateral; (v) except as otherwise set forth herein (A) the Administrative Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to the Borrower, the Obligations, the Collections, or otherwise related to any of same as provided in the Loan Documents, and (B) the Collateral Agent shall have the right to perform, exercise and enforce any and all other rights and remedies of the Lenders with respect to the Borrower, the Obligations, the Collateral or otherwise related to any of the same as provided in the Loan Documents; and (vi) each of the Agents shall have the right to incur and pay such fees, charges and expenses under the Loan Documents as such Agent reasonably may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents. The Administrative Agent may deem and treat the payee of any Obligation as the holder thereof for all purposes of the Loan Documents unless and until a notice of the assignment or transfer of such Obligation shall have been filed with the Administrative Agent. Each Lender further consents to (y) the execution, delivery and performance by the Administrative Agent or the Collateral Agent of each Loan Document entered into by such Agent on behalf of the Lenders as contemplated by this Agreement and (z) the terms of such Loan Documents.
(b) Except as otherwise provided in this Section 12.01, each of the Administrative Agent and the Collateral Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No None of the Administrative Agent and the Collateral Agent shall be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made in compliance with this section and without gross negligence or willful misconduct. The duties .
(c) None of each Agent the Agent-Related Persons shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not (i) be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted to be taken by it hereunder any of them under or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct.
(b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document, then the Administrative Agent Document or the Collateral Agent, as the case may be, shall transactions contemplated hereby (except for its own gross negligence or willful misconduct) or (ii) be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability responsible in any manner to any Person Lender for any recital, statement, representation or warranty made by reason the Borrower or any Relevant Subsidiary or Affiliate of so refraining. Each Agent shall be fully justified the Borrower, or any officer or director thereof, contained in failing this Agreement or refusing to take any action hereunder or under in any other Loan Document (i) if such action wouldDocument, or in the opinion of such Agentany certificate, be contrary report, statement or other document referred to law or provided for in, or received by any Agent under or in connection with, this Agreement or any other Loan Document, or the terms validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, (ii) if such action would, in or for any failure of the opinion of such Agent, expose such Agent Borrower or any other party to Environmental Liabilities and Costs or (iii) if such Agent shall not first be indemnified any Loan Document to perform its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document Document, or to inspect the properties, books or records of the Borrower or any of its Relevant Subsidiaries.
(d) To the extent that any Obligor now or in accordance the future is required to grant security pursuant to the laws of the Province of Quebec, each Secured Creditor, hereby irrevocably authorize and appoint each of the Administrative Agent and the Collateral Agent to act as the holder of an irrevocable power of attorney (fondé de pouvoir) (within the meaning of Article 2692 of the Civil Code of Quebec) in order to hold any hypothec granted under the laws of the Province of Quebec as security for any debenture, bond or other title of indebtedness that may be issued by such Obligor pursuant to a deed of hypothec and to exercise such rights and duties as are conferred upon a fondé de pouvoir under the relevant deed of hypothec and applicable laws (with the instructions power to delegate any such rights or duties). Moreover, in respect of Required Lenders any pledge by any Obligor of any such debenture, bond or other title of indebtedness as security for any Obligations, each of the Administrative Agent and the Collateral Agent shall also be authorized to hold such debenture, bond or other title of indebtedness as agent and pledgee for the benefit of the Secured Creditors, the whole notwithstanding the provisions of Section 32 of An Act respecting the Special Powers of Legal Persons (Quebec). The execution prior to the date hereof by the Administrative Agent or the Collateral Agent of any deed of hypothec or other security documents made pursuant to the laws of the Province of Quebec, is hereby ratified and confirmed. Any person who becomes a Secured Creditor shall be deemed to have consented to and ratified the foregoing appointment of each of the Administrative Agent and Collateral Agent as fondé de pouvoir, agent and mandatory on behalf of all affected LendersSecured Creditors, including such person. For greater certainty, each of the Administrative Agent and the Collateral Agent, acting as applicablethe holder of an irrevocable power of attorney (fondé de pouvoir), shall have the same rights, powers, immunities, indemnities and exclusions from liability as are prescribed in favour of the Agents in this Agreement, which shall apply mutatis mutandis. Without limitation, the provisions of Section 12.08 of this Agreement shall apply mutatis mutandis to the resignation and appointment of a successor Administrative Agent or Collateral Agent acting as the holder of an irrevocable power of attorney (fondé de pouvoir).
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Primus Telecommunications Group Inc)
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) Each Lender hereby irrevocably designates and appoints GENERAL ELECTRIC CAPITAL CORPORATION GCF as its Collateral Agent administrative agent under this Agreement and the other Loan Documents and GENERAL ELECTRIC CAPITAL CORPORATION as Administrative Agent its collateral agent under this Agreement and the other Loan Documents. The Such Lender hereby irrevocably authorizes each such Agent to take such action on such Lender's behalf under the provisions of this SECTION 13.01 are solely for the benefit of the Agents and Lenders and no Credit Party nor any other Person, other than permitted sub-agents, shall have any rights as a third-party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Loan Documents, each Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Credit Party or any other Person. No Agent shall have duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless otherwise provided, each Agent may execute its functions and duties under this Agreement and the other Loan Documents by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No Agent shall be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made without gross negligence or willful misconduct. The duties of each Agent shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any Lender. Except and to exercise such powers and perform such duties as are expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty delegated to disclose, and shall not be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted to be taken it by it hereunder or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct.
(b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document, then the Administrative Agent or the Collateral Agent, as the case may be, shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability to any Person by reason of so refraining. Each Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Loan Document (i) if such action would, in the opinion of such Agent, be contrary to law or the terms of this Agreement or any other Loan Document, (ii) if together with such action would, powers as are reasonably incidental thereto. Each such Agent agrees to act as such on the express conditions contained in this ARTICLE XIII. The provisions of this ARTICLE XIII are solely for the opinion benefit of such the Administrative Agent, expose such the Collateral Agent and the Lenders. Neither the Borrower nor any other Persons shall have any rights as third party beneficiaries of any of the provisions contained herein; PROVIDED, HOWEVER, that the right to Environmental Liabilities and Costs consent to a successor Agent as provided under SECTION 13.08 also shall be for the benefit of the Borrower. Any provision to the contrary contained elsewhere in this Agreement or (iii) if in any other Loan Document notwithstanding, each such Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of duties or responsibilities, except those expressly set forth herein, nor shall each such Agent acting have or refraining from acting hereunder be deemed to have any fiduciary relationship with any of the Lenders and no implied covenants, functions, responsibilities, duties, obligations or under liabilities shall be read into this Agreement or any other Loan Document in accordance with or otherwise exist against each such Agent; it being expressly understood and agreed that the instructions use of Required Lenders or all affected the word "Agent" is for convenience only and that each such Agent is merely the representative of the Lenders, as applicable.and has only the contractual duties set forth in this Agreement and the
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Overhill Farms Inc)
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. 110
(a) Each Lender and each L/C Issuer hereby irrevocably designates and appoints GENERAL ELECTRIC CAPITAL CORPORATION as its Collateral Agent under this Agreement and the other Loan Documents and GENERAL ELECTRIC CAPITAL CORPORATION as Administrative Agent under this Agreement and the other Loan Documents. The provisions of this SECTION 13.01 are solely for the benefit of the Agents Agents, the L/C Issuers and Lenders and no Credit Party nor any other Person, other than permitted sub-agents, shall have any rights as a third-party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Loan Documents, each Agent shall act solely as an agent of Lenders and the L/C Issuers and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Credit Party or any other Person. No Agent shall have duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless otherwise provided, each Agent may execute its functions and duties under this Agreement and the other Loan Documents by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No Agent shall be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made without gross negligence or willful misconduct. The duties of each Agent shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any LenderLender or any L/C Issuer. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender or any L/C Issuer for any action taken or omitted to be taken by it hereunder or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct. Each Lender and each L/C Issuer hereby authorizes each of the Agents to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Credit Party, and agrees to be bound thereby, and (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to each of the Agents under such Loan Documents.
(b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document, then the Administrative Agent or the Collateral Agent, as the case may be, shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability to any Person by reason of so refraining. Each Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Loan Document (i) if such action would, in the opinion of such Agent, be contrary to law or the terms of this Agreement or any other Loan Document, (ii) if such action would, in the opinion of such Agent, expose such Agent to Environmental Liabilities and Costs or (iii) if such Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender nor L/C Issuer shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of Required Lenders or all affected Lenders, as applicable.
Appears in 1 contract
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) Each The Lender hereby irrevocably designates and appoints GENERAL ELECTRIC CAPITAL CORPORATION Administrative Agent as its Collateral Agent administrative agent under this Agreement and the other Loan Documents and GENERAL ELECTRIC CAPITAL CORPORATION Collateral Agent as Administrative Agent its collateral agent under this Agreement and the other Loan Documents. The Lender hereby irrevocably authorizes each such Agent to take such action on the Lender's behalf under the provisions of this SECTION 13.01 Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Each such Agent agrees to act as such on the express conditions contained in this Article XIII. The provisions of this Article XIII are solely for the benefit of the Agents Administrative Agent, Collateral Agent, and Lenders and no Credit Party nor any other Person, other than permitted sub-agents, the Lenders. Borrowers shall not have any rights as a third-third party beneficiary of any of the provisions hereofcontained herein; provided, however, that certain of the provisions of Section 13.13 hereof also shall be for the benefit of Borrowers. In performing its functions and duties under Any provision to the contrary contained elsewhere in this Agreement and the or in any other Loan DocumentsDocument notwithstanding, each such Agent shall act solely as an agent of Lenders and does not assume and have any duties or responsibilities, except those expressly set forth herein, nor shall not each such Agent have or be deemed to have assumed any obligation toward fiduciary relationship with any of the Lenders and no implied covenants, functions, responsibilities, duties, obligations or relationship of agency or trust with or for any Credit Party liabilities shall be read into this Agreement or any other Person. No Loan Document or otherwise exist against each such Agent; it being expressly understood and agreed that the use of the word "Agent" is for convenience only and that each such Agent shall have is merely the representative of the Lenders, and has only the contractual duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless Except as expressly otherwise providedprovided in this Agreement, each such Agent shall have and may execute use its functions and duties sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which such Agent is expressly entitled to take or assert under or pursuant to this Agreement and the other Loan Documents. No Lender shall have any right of action whatsoever against each such Agent as a result of such Agent acting or refraining from acting hereunder pursuant to such discretion and any action taken or failure to act pursuant to such discretion shall be binding on the Lenders. Without limiting the generality of the foregoing, or of any other provision of the Loan Documents that provides rights or powers to Administrative Agent or Collateral Agent, each of the Lenders agree that, as long as this Agreement remains in effect: (i) (A) Administrative Agent shall have the right to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Loans, the Collections, and related matters, and (B) Collateral Agent shall have the right to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Collateral and related matters; (ii) Collateral Agent shall have the right to execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents; (iii) Administrative Agent shall have the right to make the Loans, for itself or on behalf of the applicable Lenders as provided in the Loan Documents; (iv) Administrative Agent shall have the right to exclusively receive, apply, and distribute the Collections as provided in the Loan Documents; (v) Administrative Agent shall have the right to open and maintain such bank accounts and lock boxes as Administrative Agent deems necessary and appropriate in accordance with the Loan Documents for the foregoing purposes with respect to the Collections and, on behalf of Collateral Agent, the Collateral; (vi)
(A) Administrative Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to Borrowers, the Obligations, the Collections, or otherwise related to any of same as provided in the Loan Documents, and (B) Collateral Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to Borrowers, the Obligations, the Collateral, or otherwise related to any of same as provided in the Loan Documents; and (vii) Administrative Agent and Collateral Agent each shall have the right to incur and pay such fees, charges, and expenses under the Loan Documents as such Agent reasonably may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents. Administrative Agent may deem and treat the payee of any Obligation as the holder thereof for all purposes of the Loan Documents unless and until a notice of the assignment or transfer of such Obligation shall have been filed with Administrative Agent. Each Lender further consents to (y) the execution, delivery, and performance by Administrative Agent or Collateral Agent of each Loan Document entered into by such Agent on behalf of the Lenders as contemplated by this Agreement, and (z) the terms of such Loan Documents.
(b) Except as otherwise provided in this section, each of Administrative Agent and Collateral Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No Each of Administrative Agent and Collateral Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made in compliance with this section and without gross negligence or willful misconduct. The duties .
(c) None of each Agent the Agent-Related Persons shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not (i) be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted to be taken by it hereunder any of them under or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct.
(b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any Lender for any recital, statement, representation or warranty made by Borrowers or any Subsidiary or Affiliate of Borrowers, or any officer or director thereof, contained in this Agreement or in any other Loan Document, then the or in any certificate, report, statement or other document referred to or provided for in, or received by Administrative Agent or the Collateral Agent, as the case may be, shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability to any Person by reason of so refraining. Each Agent shall be fully justified under or in failing connection with, this Agreement or refusing to take any action hereunder or under any other Loan Document (i) if such action wouldDocument, in the opinion of such Agent, be contrary to law or the terms validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, (ii) if such action would, in the opinion or for any failure of such Agent, expose such Agent Borrowers or any other party to Environmental Liabilities and Costs or (iii) if such Agent shall not first be indemnified any Loan Document to perform its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document in accordance with Document, or to inspect the instructions properties, books or records of Required Lenders Borrowers or all affected Lenders, as applicableany of its Subsidiaries.
Appears in 1 contract
Samples: Credit Agreement (Avado Brands Inc)
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) Each Lender hereby irrevocably designates and appoints GENERAL ELECTRIC CAPITAL CORPORATION BNY as its Administrative Agent under this Agreement and the other Loan Documents and as its Collateral Agent under this Agreement and the other Loan Documents Documents. Each Revolving Lender hereby designates and GENERAL ELECTRIC CAPITAL CORPORATION appoints BNY as its Administrative Agent under this Agreement and the other Loan Documents. Such Lender hereby irrevocably authorizes each such Agent to take such action on such Lender’s behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Each such Agent agrees to act as such on the express conditions contained in this Article XV. The provisions of this SECTION 13.01 Article XV are solely for the benefit of the Agents Administrative Agent, the Collateral Agent, the Administrative Agent and Lenders and no Credit Party the Lenders. Neither the Borrower nor any other Person, other than permitted sub-agents, Persons shall have any rights as a third-third party beneficiary beneficiaries of any of the provisions hereofcontained herein; provided, however, that the right to consent to a successor Agent as provided under Section 15.08 also shall be for the benefit of the Borrower. In performing its functions and duties under Any provision to the contrary contained elsewhere in this Agreement and the or in any other Loan DocumentsDocument notwithstanding, each such Agent shall act solely as an agent of Lenders and does not assume and have any duties or responsibilities, except those expressly set forth herein, nor shall not each such Agent have or be deemed to have assumed any obligation toward fiduciary relationship with any Lender and no implied covenants, functions, responsibilities, duties, obligations or relationship of agency or trust with or for any Credit Party liabilities shall be read into this Agreement or any other Person. No Loan Document or otherwise exist against each such Agent; it being expressly understood and agreed that the use of the word “Agent” is for convenience only and that each such Agent shall have is merely the representative of the Lenders, and has only the contractual duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless Except as expressly otherwise providedprovided in this Agreement, each such Agent shall have and may execute use its functions and duties sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which such Agent is expressly entitled to take or assert under or pursuant to this Agreement and the other Loan Documents. No Lender shall have
(A) the Administrative Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to the Borrower, the Obligations, the Collections, or otherwise related to any of same as provided in the Loan Documents and (B) the Collateral Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to the Borrower, the Obligations, the Collateral, or otherwise related to any of the same as provided in the Loan Documents; and (vii) each of the Agents shall have the right to incur and pay such fees, charges, and expenses under the Loan Documents as such Agent reasonably may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents. The Administrative Agent may deem and treat the payee of any Obligation as the holder thereof for all purposes of the Loan Documents unless and until a notice of the assignment or transfer of such Obligation shall have been filed with the Administrative Agent. Each Lender further consents to (y) the execution, delivery, and performance by the Administrative Agent or the Collateral Agent of each Loan Document entered into by such Agent on behalf of the Lenders as contemplated by this Agreement, and (z) the terms of such Loan Documents.
(b) Except as otherwise provided in this Section 15.01, each of the Administrative Agent and the Collateral Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No None of the Administrative Agent and the Collateral Agent shall be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made in compliance with this Section and without gross negligence or willful misconduct. The duties .
(c) None of each Agent the Agent-Related Persons shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not (i) be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted to be taken by it hereunder any of them under or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct.
(b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document, then the Administrative Agent Document or the Collateral Agent, as the case may be, shall transactions contemplated hereby (except for its own gross negligence or willful misconduct) or (ii) be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability responsible in any manner to any Person Lender for any recital, statement, representation or warranty made by reason any Credit Party or any Subsidiary or Affiliate of so refraining. Each Agent shall be fully justified any Credit Party, or any officer or director thereof, contained in failing this Agreement or refusing to take any action hereunder or under in any other Loan Document (i) if such action wouldDocument, or in the opinion of such Agentany certificate, be contrary report, statement or other document referred to law or provided for in, or received by any Agent under or in connection with, this Agreement or any other Loan Document, or the terms validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, (ii) if such action would, in the opinion or for any failure of such Agent, expose such Agent any Credit Party or any other party to Environmental Liabilities and Costs or (iii) if such Agent shall not first be indemnified any Loan Document to perform its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of the Borrower or any of its Subsidiaries.
(d) SunTrust Bank, a Lender hereto, will not incur any additional obligations, duties or liabilities under this Agreement or any other Loan Document in accordance with the instructions by virtue of Required Lenders or all affected Lenders, its position as applicableSyndication Agent.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (SOI Holdings, Inc.)
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) Each Lender The Lenders hereby irrevocably designates designate and appoints GENERAL ELECTRIC CAPITAL CORPORATION appoint Administrative Agent as its Collateral Agent administrative agent under this Agreement and the other Loan Documents and GENERAL ELECTRIC CAPITAL CORPORATION Collateral Agent as Administrative Agent its collateral agent under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize each such Agent to take such action on the Lenders' behalf under the provisions of this SECTION 13.01 Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Each such Agent agrees to act as such on the express conditions contained in this Article XIII. The provisions of this Article XIII are solely for the benefit of the Agents Administrative Agent, Collateral Agent, and Lenders and no Credit Party nor any other Person, other than permitted sub-agents, the Lenders. Borrowers shall not have any rights as a third-third party beneficiary of any of the provisions hereofcontained herein. In performing its functions and duties under Any provision to the contrary contained elsewhere in this Agreement and the or in any other Loan DocumentsDocument notwithstanding, each such Agent shall act solely as an agent of Lenders and does not assume and have any duties or responsibilities, except those expressly set forth herein or therein, nor shall not each such Agent have or be deemed to have assumed any obligation toward fiduciary relationship with any of the Lenders and no implied covenants, functions, responsibilities, duties, obligations or relationship of agency or trust with or for any Credit Party liabilities shall be read into this Agreement or any other Person. No Loan Document or otherwise exist against each such Agent; it being expressly understood and agreed that the use of the word "Agent" is for convenience only and that each such Agent shall have is merely the representative of the Lenders, and has only the contractual duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless Except as expressly otherwise providedprovided in this Agreement, each such Agent shall have and may execute use its functions and duties sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which such Agent is expressly entitled to take or assert under or pursuant to this Agreement and the other Loan Documents. No Lender shall have any right of action whatsoever against each such Agent as a result of such Agent acting or refraining from acting hereunder pursuant to such discretion and any action taken or failure to act pursuant to such discretion shall be binding on the Lenders. Without limiting the generality of the foregoing, or of any other provision of the Loan Documents that provides rights or powers to Administrative Agent or Collateral Agent, each of the Lenders agree that, as long as this Agreement remains in effect: (i) (A) Administrative Agent shall have the right to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Loans, the Collections, and related matters, and (B) Collateral Agent shall have the right to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Collateral and related matters; (ii) Collateral Agent shall have the right to execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, and other written agreements with respect to the Loan Documents; (iii) Administrative Agent shall have the right to make the Loans, for itself or on behalf of the applicable Lenders as provided in the Loan Documents; (iv) Administrative Agent shall have the right to exclusively receive, apply, and distribute the Collections as provided in the Loan Documents; (v) Administrative Agent shall have the right to open and maintain such bank accounts and lock boxes as Administrative Agent deems necessary and appropriate in accordance with the Loan Documents for the foregoing purposes with respect to the Collections and, on behalf of Collateral Agent, the Collateral; (vi) (A) Administrative Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to Borrowers, the Obligations, the Collections, or otherwise related to any of same as provided in the Loan Documents, and (B) Collateral Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to Borrowers, the Obligations, the Collateral, or otherwise related to any of same as provided in the Loan Documents; and (vii) Administrative Agent and Collateral Agent each shall have the right to incur and pay such fees, charges, and expenses under the Loan Documents as such Agent may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents. Administrative Agent may deem and treat the payee of any Obligation as the holder thereof for all purposes of the Loan Documents unless and until a notice of the assignment or transfer of such Obligation shall have been filed with Administrative Agent. Each Lender further consents to (y) the execution, delivery, and performance by Administrative Agent or Collateral Agent of each Loan Document entered into by such Agent on behalf of the Lenders as contemplated by this Agreement, and (z) the terms of such Loan Documents.
(b) Except as otherwise provided in this section, each of Administrative Agent and Collateral Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No Each of Administrative Agent and Collateral Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made in compliance with this section and without gross negligence or willful misconduct. The duties misconduct of each Administrative Agent or Collateral Agent as determined by a final order of a court of competent jurisdiction.
(c) None of the Agent-Related Persons shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not (i) be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted to be taken by it hereunder any of them under or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct.
(b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a final order of a court of competent jurisdiction), or (ii) be responsible in any manner to any Lender for any recital, statement, representation or warranty made by Borrowers or any Subsidiary or Affiliate of any Borrower, or any officer or director thereof, contained in this Agreement or in any other Loan Document, then the or in any certificate, report, statement or other document referred to or provided for in, or received by Administrative Agent or the Collateral Agent, as the case may be, shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability to any Person by reason of so refraining. Each Agent shall be fully justified under or in failing connection with, this Agreement or refusing to take any action hereunder or under any other Loan Document (i) if such action wouldDocument, in the opinion of such Agent, be contrary to law or the terms validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, (ii) if such action would, in the opinion or for any failure of such Agent, expose such Agent Borrowers or any other party to Environmental Liabilities and Costs or (iii) if such Agent shall not first be indemnified any Loan Document to perform its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document in accordance with Document, or to inspect the instructions properties, books or records of Required Lenders Borrowers or all affected Lenders, as applicableany of their respective Subsidiaries.
Appears in 1 contract
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) Each Lender hereby irrevocably designates appoints and appoints GENERAL ELECTRIC CAPITAL CORPORATION authorizes Cantor Xxxxxxxxxx Securities, as its Administrative and Collateral Agent under this Agreement and the other Loan Documents to take such actions on its behalf and GENERAL ELECTRIC CAPITAL CORPORATION to exercise such powers as Administrative Agent under this Agreement are delegated to the Agents by the terms hereof and the other Loan Documents. thereof, together with such actions and powers as are reasonably incidental thereto.
(b) The provisions of this SECTION 13.01 Article are solely for the benefit of the Agents and Lenders and no Credit Party nor or any other Person, other than permitted sub-agents, shall have any rights as a third-party beneficiary of any of the provisions hereof. .
(c) In performing its functions and duties under this Agreement and the other Loan Documents, each Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Credit Party or any other Person. No Agent shall have duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless otherwise provided, each Agent may execute its functions and duties under this Agreement and the other Loan Documents by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No Agent shall be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made without gross negligence or willful misconduct. The duties of each Agent shall solely be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any LenderLender or any duties or obligations, except those expressly set forth herein and in the other Loan Documents. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted to be taken by it hereunder or under any other Loan Document, or in connection herewith or therewith, except for damages caused by (i) with the consent of the Required Lenders or (ii) in the absence of its own gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction in a final non-appealable judgment. The Agents shall not be deemed to have knowledge of any Default or the event or events that give or may give rise to any Default unless and until notice describing such Default, as identified as a “notice of default,” and such event or events is given to the Agents by the Credit Parties or any Lender.
(bd) Each Lender hereby authorizes each of the Agents to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Credit Party, and agrees to be bound thereby, and (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to each of the Agents under such Loan Documents.
(e) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders, the Supermajority Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document, then the Administrative Agent or the Collateral Agent, as the case may be, shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability to any Person by reason of so refraining. Each Agent shall not have any duty to take any discretionary action or exercise any discretionary powers without the written direction of the Required Lenders (or such other number or percentage of the Lenders as shall be fully justified expressly provided for herein or in failing or refusing the other Loan Documents); provided that no Agent shall be required to take any action hereunder or under any other Loan Document (i) if such action wouldthat, in its opinion or the opinion of such Agentits counsel, be contrary to law or the terms of this Agreement or any other Loan Document, (ii) if such action would, in the opinion of such Agent, may expose such Agent or any of its Agent-Related Persons to Environmental Liabilities and Costs liability or (iii) if such that is contrary to any Loan Document or applicable law; provided further that no Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing required to take any action unless the written direction of the Required Lenders with respect to such actionaction includes an agreement to indemnify such Agent with respect to such Action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of Required Lenders or all affected Lenders, as applicable.
(f) Each Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Finding Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or the perfection or priority of any Lien or security interest created or purported to be created by the Loan Documents or (v) the satisfaction of any condition set forth in ARTICLE V or elsewhere herein, other than (but subject to the foregoing clause (ii) to confirm receipt of items expressly required to be delivered to the Agents. Each Agent shall not be responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by each Agent or any other Person given in, pursuant to or in connection with any Loan Documents.
(g) Nothing in this Agreement or any other Financing Agreement shall require the Agents to carry out any “know your customer” or other checks in relation to any person on behalf of any Lender Party and each Lender Party confirms to the Agents that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agents.
(h) Each Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by Agents. Each Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates. Each such sub-agent and the Affiliates of the Agents and each such sub-agent shall be entitled to the benefits of all provisions of this ARTICLE XIII (as through such sub-agents were the “Agent” under the Loan Documents) as if set forth in full herein with respect thereto; provided that the Agents shall not be responsible for the negligence or misconduct of any sub-agents.
Appears in 1 contract
Samples: Superpriority Debtor in Possession Credit Agreement (James River Coal CO)
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) Each Lender hereby irrevocably designates and appoints GENERAL ELECTRIC CAPITAL CORPORATION the Administrative Agent as its Collateral Agent administrative agent under this Agreement and the other Loan Documents and GENERAL ELECTRIC CAPITAL CORPORATION the Collateral Agent as Administrative Agent its collateral agent under this Agreement and the other Loan Documents. Each Lender hereby irrevocably authorizes each such Agent to take such action on such Lender’s behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Each such Agent agrees to act as such on the express conditions contained in this Article XII. The provisions of this SECTION 13.01 Article XII are solely for the benefit of the Agents Administrative Agent, Collateral Agent, and Lenders and no Credit Party nor any other Person, other than permitted sub-agents, the Lenders. The Borrower shall not have any rights as a third-third party beneficiary of any of the provisions hereofcontained herein. In performing its functions and duties under Any provision to the contrary contained elsewhere in this Agreement and the or in any other Loan DocumentsDocument notwithstanding, each such Agent shall act solely as an agent of Lenders and does not assume and have any duties or responsibilities, except those expressly set forth herein, nor shall not each such Agent have or be deemed to have assumed any obligation toward fiduciary relationship with any of the Lenders and no implied covenants, functions, responsibilities, duties, obligations or relationship of agency or trust with or for any Credit Party liabilities shall be read into this Agreement or any other Person. No Loan Document or otherwise exist against each such Agent; it being expressly understood and agreed that the use of the word “Agent” is for convenience only and that each such Agent shall have is merely the representative of the Lenders, and has only the contractual duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless Except as expressly otherwise providedprovided in this Agreement, each such Agent shall have and may execute use its functions and duties sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which such Agent is expressly entitled to take or assert under or pursuant to this Agreement and the other Loan Documents. No Lender shall have any right of action whatsoever against each such Agent as a result of such Agent acting or refraining from acting hereunder pursuant to such discretion and any action taken or failure to act pursuant to such discretion shall be binding on the Lenders. Without limiting the generality of the foregoing, or of any other provision of the Loan Documents that provides rights or powers to Administrative Agent or Collateral Agent, each of the Lenders agree that, as long as this Agreement remains in effect: (i) (A) Administrative Agent shall have the right to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Loans, Collections, and related matters, and (B) Collateral Agent shall have the right to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Collateral and related matters; (ii) Collateral Agent shall have the right to execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents; (iii) Administrative Agent shall have the right to exclusively receive, apply, and distribute the Collections as provided in the Loan Documents; (iv) Administrative Agent shall have the right to open and maintain such bank accounts and lock boxes as Administrative Agent deems necessary and appropriate in accordance with the Loan Documents for the foregoing purposes with respect to the Collections and, on behalf of Collateral Agent, with respect to the Collateral; (v) (A) Administrative Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to the Borrower, the Obligations, the Collections, or otherwise related to any of same as provided in the Loan Documents, and (B) Collateral Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to Borrower, the Obligations, the Collateral, or otherwise related to any of same as provided in the Loan Documents; and (vi) Administrative Agent and Collateral Agent each shall have the right to incur and pay such fees, charges, and expenses under the Loan Documents as such Agent reasonably may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents. Administrative Agent may deem and treat the payee of any Obligation as the holder thereof for all purposes of the Loan Documents unless and until a notice of the assignment or transfer of such Obligation shall have been filed with Administrative Agent. Each Lender further consents to (y) the execution, delivery, and performance by Administrative Agent or Collateral Agent of each Loan Document entered into by such Agent on behalf of the Lenders as contemplated by this Agreement, and (z) the terms of such Loan Documents.
(b) Except as otherwise provided in this section, each of Administrative Agent and Collateral Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No Each of Administrative Agent and Collateral Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made in compliance with this section and without gross negligence or willful misconduct. The duties .
(c) None of each Agent the Agent-Related Persons shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not (i) be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted to be taken by it hereunder any of them under or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct.
(b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any Lender for any recital, statement, representation or warranty made by any Borrower or Affiliate of any Borrower, or any officer or director thereof, contained in this Agreement or in any other Loan Document, then the or in any certificate, report, statement or other document referred to or provided for in, or received by Administrative Agent or the Collateral Agent, as the case may be, shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability to any Person by reason of so refraining. Each Agent shall be fully justified under or in failing connection with, this Agreement or refusing to take any action hereunder or under any other Loan Document (i) if such action wouldDocument, in the opinion of such Agent, be contrary to law or the terms validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, (ii) if such action would, in the opinion or for any failure of such Agent, expose such Agent any Borrower or any other party to Environmental Liabilities and Costs or (iii) if such Agent shall not first be indemnified any Loan Document to perform its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document in accordance with Document, or to inspect the instructions properties, books or records of Required Lenders or all affected Lenders, as applicablethe Borrower.
Appears in 1 contract
Samples: Loan Agreement (Accredited Mortgage Loan REIT Trust)
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) Each Lender hereby irrevocably designates and appoints GENERAL ELECTRIC CAPITAL CORPORATION XXXXXX XXXXXXX SENIOR FUNDING, INC. as its Collateral Administrative Agent under this Agreement and the other Loan Documents and GENERAL ELECTRIC CAPITAL CORPORATION Documents. XXXXXX XXXXXXX & CO. INCORPORATED as Administrative Collateral Agent under this Agreement and the other Loan Documents. The provisions of this SECTION 13.01 are solely for the benefit of the Agents and Lenders and no Credit Party nor any other Person, other than permitted sub-agents, shall have any rights as a third-party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Loan Documents, each Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Credit Party or any other Person. No Agent shall have duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless otherwise provided, each Agent may execute its functions and duties under this Agreement and the other Loan Documents by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No Agent shall be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made without gross negligence or willful misconduct. The duties of each Agent shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted to be taken by it hereunder or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct.
(b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document, then the Administrative Agent or the Collateral Agent, as the case may be, shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability to any Person by reason of so refraining. Each Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Loan Document (i) if such action would, in the opinion of such Agent, be contrary to law or the terms of this Agreement or any other Loan Document, (ii) if such action would, in the opinion of such Agent, expose such Agent to Environmental Liabilities and Costs or (iii) if such Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of Required Lenders or all affected Lenders, as applicable.
Appears in 1 contract
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) Each DIP Lender hereby irrevocably designates and appoints GENERAL ELECTRIC CAPITAL CORPORATION Viriathus Services LLC Series as Administrative Agent and as its Collateral Agent under this Agreement and the other Loan Documents and GENERAL ELECTRIC CAPITAL CORPORATION as Administrative Documents. Each DIP Lender hereby irrevocably authorizes each such Agent to take such action on such DIP Lender’s behalf under the provisions of this Agreement and the each other Loan DocumentsDocument and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Each such Agent agrees to act as such on the express conditions contained in this ARTICLE XII. The provisions of this SECTION 13.01 ARTICLE XII are solely for the benefit of the Agents Administrative Agent, the Collateral Agent and Lenders and no Credit Party the DIP Lenders. Neither Borrowers nor any other Person, other than permitted sub-agents, Persons shall have any rights or benefits under this ARTICLE XII whether as a third-party beneficiary of any of beneficiaries or otherwise, save and except only Borrowers’ right to consent to a successor Agent to the provisions hereofextent provided under Section 12.08. In performing its functions and duties under Any provision to the contrary contained elsewhere in this Agreement and the or in any other Loan DocumentsDocument notwithstanding, each (i) no Agent shall act solely as an agent of Lenders and does not assume and have any duties or responsibilities, except those expressly set forth herein, (ii) no Agent has, shall not have or be deemed to have assumed any obligation toward fiduciary relationship with any DIP Lender, (iii) no implied covenants, functions, responsibilities, duties, obligations or relationship of agency or trust with or for any Credit Party liabilities shall be read into this Agreement or any other Person. No Loan Document or otherwise exist against any Agent, and (iv) it is expressly understood, acknowledged and agreed that the use of the word “Agent” is for convenience only and that each such Agent shall have is merely the representative of the DIP Lenders, and has only the contractual duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless Except as expressly otherwise providedprovided in this Agreement, each such Agent shall have and may execute use its functions and duties sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which such Agent is expressly entitled to take or assert under or pursuant to this Agreement and the other Loan Documents. No DIP Lender shall have any right of action whatsoever against each such Agent as a result of such Agent acting or refraining from acting hereunder pursuant to such discretion and any action taken or failure to act pursuant to such discretion shall be binding on the DIP Lenders. Without limiting the generality of the foregoing, or of any other provision of the Loan Documents that provides rights or powers to the Administrative Agent or the Collateral Agent, each DIP Lender agrees that, as long as this Agreement remains in effect: (i) (A) the Administrative Agent shall have the right to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the DIP Loans, the Collections and related matters and (B) the Collateral Agent shall have the right to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Collateral and related matters; (ii) the Collateral Agent shall have the right to execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents; (iii) the Agents shall have the right to exclusively receive, apply, and distribute the Collections as provided in the Loan Documents; (iv) the Collateral Agent shall have the right to open and maintain such bank accounts and lock boxes as the Collateral Agent deems necessary and appropriate in accordance with the Loan Documents for the foregoing purposes with respect to the Collections and the Collateral; (v)
(A) the Administrative Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the DIP Lenders with respect to Borrowers, the Obligations, the Collections, or otherwise related to any of same as provided in the Loan Documents and (B) the Collateral Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the DIP Lenders with respect to Borrowers, the Obligations, the Collateral, or otherwise related to any of the same as provided in the Loan Documents; and (vi) each of the Agents shall have the right to incur and pay such fees, charges, and expenses under the Loan Documents as such Agent reasonably may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents. The Administrative Agent may deem and treat the payee of any Obligation as the holder thereof for all purposes of the Loan Documents unless and until a notice of the assignment or transfer of such Obligation that is in accordance with the provisions of this Agreement shall have been filed with the Administrative Agent. Each DIP Lender further consents to (x) the execution, delivery, and performance by the Administrative Agent or the Collateral Agent of each Loan Document entered into by such Agent on behalf of the DIP Lenders as contemplated by this Agreement, and (y) the terms of such Loan Documents.
(b) Except as otherwise expressly provided in this Section 12.01, each of the Administrative Agent and the Collateral Agent (i) may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and (ii) shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No Neither the Administrative Agent nor the Collateral Agent shall be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made in compliance with this section and without gross negligence or willful misconduct. The duties .
(c) None of each Agent the Agent-Related Persons shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall (i) be liable to any DIP Lender for any action taken or omitted to be taken by it hereunder any of them under or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct.
(b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document, then the Administrative Agent Document or the Collateral Agent, as the case may be, shall transactions contemplated hereby (except for its own gross negligence or willful misconduct) or (ii) be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability responsible in any manner to any Person DIP Lender for any recital, statement, representation or warranty made by reason Borrowers or any Affiliate of so refraining. Each Agent shall be fully justified Borrowers, or any officer or director thereof, contained in failing this Agreement or refusing to take any action hereunder or under in any other Loan Document (i) if such action wouldDocument, or in the opinion of such Agentany certificate, be contrary report, statement, or other document referred to law or provided for in, or received by any Agent under or in connection with, this Agreement or any other Loan Document, or the terms validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, (ii) if such action would, in the opinion or for any failure of such Agent, expose such Agent Borrowers or any other party to Environmental Liabilities and Costs or (iii) if such Agent shall not first be indemnified any Loan Document to perform its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any DIP Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document in accordance with Document, or to inspect the instructions properties, books or records of Required Lenders or all affected Lenders, as applicableBorrowers.
Appears in 1 contract
Samples: Senior Secured Super Priority Credit Agreement (Isolagen Inc)
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) Each The Lender hereby irrevocably designates and appoints GENERAL ELECTRIC CAPITAL CORPORATION Administrative Agent as its Collateral Agent administrative agent under this Agreement and the other Loan Documents and GENERAL ELECTRIC CAPITAL CORPORATION Collateral Agent as Administrative Agent its collateral agent under this Agreement and the other Loan Documents. The Lender hereby irrevocably authorizes each such Agent to take such action on the Lender's behalf under the provisions of this SECTION 13.01 Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Each such Agent agrees to act as such on the express conditions contained in this Article XIII. The provisions of this Article XIII are solely for the benefit of the Agents Administrative Agent, Collateral Agent, and Lenders and no Credit Party nor any other Person, other than permitted sub-agents, the Lenders. Borrower shall not have any rights as a third-third party beneficiary of any of the provisions hereofcontained herein; provided, however, that certain of the provisions of Section 13.13 hereof also shall be for the benefit of Borrower. In performing its functions and duties under Any provision to the contrary contained elsewhere in this Agreement and the or in any other Loan DocumentsDocument notwithstanding, each such Agent shall act solely as an agent of Lenders and does not assume and have any duties or responsibilities, except those expressly set forth herein, nor shall not each such Agent have or be deemed to have assumed any obligation toward fiduciary relationship with any of the Lenders and no implied covenants, functions, responsibilities, duties, obligations or relationship of agency or trust with or for any Credit Party liabilities shall be read into this Agreement or any other Person. No Loan Document or otherwise exist against each such Agent; it being expressly understood and agreed that the use of the word "Agent" is for convenience only and that each such Agent shall have is merely the representative of the Lenders, and has only the contractual duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless Except as expressly otherwise providedprovided in this Agreement, each such Agent shall have and may execute use its functions and duties sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which such Agent is expressly entitled to take or assert under or pursuant to this Agreement and the other Loan Documents. No Lender shall have any right of action whatsoever against each such Agent as a result of such Agent acting or refraining from acting hereunder pursuant to such discretion and any action taken or failure to act pursuant to such discretion shall be binding on the Lenders. Without limiting the generality of the foregoing, or of any other provision of the Loan Documents that provides rights or powers to Administrative Agent or Collateral Agent, each of the Lenders agree that, as long as this Agreement remains in effect: (i) (A) Administrative Agent shall have the right to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Loans, the Letter of Credit Accommodations, the Collections, and related matters, and (B) Collateral Agent shall have the right to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Collateral and related matters; (ii) Collateral Agent shall have the right to execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents; (iii) Administrative Agent shall have the right to make the Loans and the Letter of Credit Accommodations, for itself or on behalf of the applicable Lenders as provided in the Loan Documents; (iv) Administrative Agent shall have the right to exclusively receive, apply, and distribute the Collections as provided in the Loan Documents; (v) Administrative Agent shall have the right to open and maintain such bank accounts and lock boxes as Administrative Agent deems necessary and appropriate in accordance with the Loan Documents for the foregoing purposes with respect to the Collections and, on behalf of Collateral Agent, the Collateral; (vi)
(A) Administrative Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to Borrower, the Obligations, the Collections, or otherwise related to any of same as provided in the Loan Documents, and (B) Collateral Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lenders with respect to Borrower, the Obligations, the Collateral, or otherwise related to any of same as provided in the Loan Documents; and (vii) Administrative Agent and Collateral Agent each shall have the right to incur and pay such fees, charges, and expenses under the Loan Documents as such Agent reasonably may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents. Administrative Agent may deem and treat the payee of any Obligation as the holder thereof for all purposes of the Loan Documents unless and until a notice of the assignment or transfer of such Obligation shall have been filed with Administrative Agent. Each Lender further consents to (y) the execution, delivery, and performance by Administrative Agent or Collateral Agent of each Loan Document entered into by such Agent on behalf of the Lenders as contemplated by this Agreement, and (z) the terms of such Loan Documents.
(b) Except as otherwise provided in this section, each of Administrative Agent and Collateral Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No Each of Administrative Agent and Collateral Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made in compliance with this section and without gross negligence or willful misconduct. The duties .
(c) None of each Agent the Agent-Related Persons shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not (i) be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted to be taken by it hereunder any of them under or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct.
(b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any Lender for any recital, statement, representation or warranty made by Borrower or any Subsidiary or Affiliate of Borrower, or any officer or director thereof, contained in this Agreement or in any other Loan Document, then the or in any certificate, report, statement or other document referred to or provided for in, or received by Administrative Agent or the Collateral Agent, as the case may be, shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability to any Person by reason of so refraining. Each Agent shall be fully justified under or in failing connection with, this Agreement or refusing to take any action hereunder or under any other Loan Document (i) if such action wouldDocument, in the opinion of such Agent, be contrary to law or the terms validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or for any failure of Borrower or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of Borrower or any of its Subsidiaries.
(d) Borrower (i) acknowledges that, contemporaneously herewith, the Former Administrative Agent and the Former Collateral Agent have resigned in their respective capacities as administrative agent and syndication agent under the Second Amended and Restated Credit Agreement, and (ii) if such action wouldconsents (A) to the appointment of Administrative Agent in its capacity as administrative agent for the Lenders hereunder, and (B) to the appointment of Collateral Agent in its capacity as collateral agent for the opinion of such Agent, expose such Agent to Environmental Liabilities and Costs or (iii) if such Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of Required Lenders or all affected Lenders, as applicablehereunder.
Appears in 1 contract
Samples: Credit Agreement (Avado Brands Inc)
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) Each Lender and each L/C Issuer hereby irrevocably designates and appoints GENERAL ELECTRIC CAPITAL CORPORATION as its Collateral Agent under this Agreement and the other Loan Documents and GENERAL ELECTRIC CAPITAL CORPORATION as Administrative Agent under this Agreement and the other Loan Documents. The provisions of this SECTION 13.01 are solely for the benefit of the Agents Agents, the L/C Issuers and Lenders and no Credit Party nor any other Person, other than permitted sub-agents, shall have any rights as a third-party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Loan Documents, each Agent shall act solely as an agent of Lenders and the L/C Issuers and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Credit Party or any other Person. No Agent shall have duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless otherwise provided, each Agent may execute its functions and duties under this Agreement and the other Loan Documents by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No Agent shall be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made without gross negligence or willful misconduct. The duties of each Agent shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any LenderLender or any L/C Issuer. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender or any L/C Issuer for any action taken or omitted to be taken by it hereunder or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct.
(b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document, then the Administrative Agent or the Collateral Agent, as the case may be, shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability to any Person by reason of so refraining. Each Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Loan Document (i) if such action would, in the opinion of such Agent, be contrary to law or the terms of this Agreement or any other Loan Document, (ii) if such action would, in the opinion of such Agent, expose such Agent to Environmental Liabilities and Costs or (iii) if such Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender nor L/C Issuer shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of Required Lenders or all affected Lenders, as applicable.
Appears in 1 contract
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) Each Lender hereby irrevocably designates appoints and appoints GENERAL ELECTRIC CAPITAL CORPORATION authorizes the Administrative Agent to act as its Collateral Administrative Agent under this Credit Agreement and the other Loan Credit Documents with such powers and GENERAL ELECTRIC CAPITAL CORPORATION discretion as are specifically delegated to the Administrative Agent under by the terms of this Credit Agreement and the other Loan Credit Documents, together with such other powers as are reasonably incidental thereto. The provisions Administrative Agent (which term as used in this sentence and in Section 10.5 and the first sentence of this SECTION 13.01 are solely for the benefit of the Agents Section 10.6 hereof shall include its Affiliates and Lenders its own and no Credit Party nor any other Personits Affiliates’ officers, other than permitted sub-agentsdirectors, employees, and Administrative Agents): (a) shall not have any rights as a third-party beneficiary of any of the provisions hereof. In performing its functions and duties under or responsibilities except those expressly set forth in this Credit Agreement and the other Loan Documents, each Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed a trustee or fiduciary for any Lender; (b) shall not be responsible to have assumed the Lenders for any obligation toward recital, statement, representation, or relationship warranty (whether written or oral) made in or in connection with any Credit Document or any certificate or other document referred to or provided for in, or received by any of agency or trust with them under, any Credit Document, or for the value, validity, effectiveness, genuineness, enforceability, or sufficiency of any Credit Document, or any other document referred to or provided for therein or for any failure by any Credit Party or any other PersonPerson to perform any of its obligations thereunder; (c) shall not be responsible for or have any duty to ascertain, inquire into, or verify the performance or observance of any covenants or agreements by any Credit Party or the satisfaction of any condition or to inspect the property (including the books and records) of any Credit Party or any of its Subsidiaries or Affiliates; (d) shall not be required to initiate or conduct any litigation or collection proceedings under any Credit Document; and (e) shall not be responsible for any action taken or omitted to be taken by it under or in connection with any Credit Document, except for its own gross negligence or willful misconduct. No The Administrative Agent may employ agents and attorneys-in-fact and shall not be responsible for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Credit Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Issuing Lender shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Lender shall have duties or responsibilities except for those expressly set forth all of the benefits and immunities (i) provided to the Administrative Agent in this Agreement Section 10 with respect to any acts taken or omissions suffered by the Issuing Lender in connection with Letters of Credit issued by it or proposed to be issued by it and the other Loan Documents. Unless otherwise providedapplications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in this Section 10 and in the definition of “Agent-Related Person” included the Issuing Lender with respect to such acts or omissions, each and (ii) as additionally provided herein with respect to the Issuing Lender.
(c) The Administrative Agent may execute any of its functions and duties under this Agreement and the or any other Loan Documents Credit Document by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel and other consultants or experts concerning all matters pertaining to such functions and duties. No The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made without in the absence of gross negligence or willful misconduct. The duties of each Agent .
(d) No Agent-Related Person shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not (i) be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted to be taken by it hereunder any of them under or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct.
(b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Credit Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct in connection with its duties expressly set forth herein), or (ii) be responsible in any manner to any Lender or participant for any recital, statement, representation or warranty made by any Credit Party or any officer thereof, contained herein or in any other Credit Document, then or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Credit Document, or the Collateral Agentvalidity, as the case may beeffectiveness, shall be entitled to refrain from such act genuineness, enforceability or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability to any Person by reason of so refraining. Each Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Loan Document (i) if such action would, in the opinion of such Agent, be contrary to law or the terms sufficiency of this Agreement or any other Loan Credit Document, (ii) if such action would, in the opinion or for any failure of such Agent, expose such Agent any Credit Party or any other party to Environmental Liabilities and Costs or (iii) if such Agent shall not first be indemnified any Credit Document to perform its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender or participant to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document in accordance with Credit Document, or to inspect the instructions properties, books or records of Required Lenders any Credit Party or all affected Lenders, as applicableany Affiliate thereof.
Appears in 1 contract
Samples: Credit Agreement (Highwoods Realty LTD Partnership)
Appointment Powers and Immunities; Delegation of Duties, Liability of Agents. (a) 11.1.1 Each member of the Lender Group hereby irrevocably designates and appoints GENERAL ELECTRIC CAPITAL CORPORATION Administrative Agent as its Collateral Agent administrative agent under this Agreement and the other Loan Documents and GENERAL ELECTRIC CAPITAL CORPORATION Collateral Agent as Administrative Agent its collateral agent under this Agreement and the other Loan Documents. Each member of the Lender Group hereby irrevocably authorizes each such Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Each such Agent agrees to act as such on the express conditions contained in this Article 11. The provisions of this SECTION 13.01 Article 11 are solely for the benefit of the Agents Administrative Agent, Collateral Agent, and Lenders and no Credit Party nor any other Person, other than permitted sub-agents, the Lenders. The Obligors shall have any no rights as a third-third party beneficiary of any of the provisions hereofcontained herein; provided, however, that certain of the provisions of Section 11.13 hereof also shall be for the benefit of the Obligors. In performing its functions and duties under Any provision to the contrary contained elsewhere in this Agreement and the or in any other Loan DocumentsDocument notwithstanding, each such Agent shall act solely as an agent of Lenders and does not assume and have any duties or responsibilities, except those expressly set forth herein, nor shall not each such Agent have or be deemed to have assumed any obligation toward fiduciary relationship with any other member of the Lender Group, and no implied covenants, functions, responsibilities, duties, obligations or relationship of agency or trust with or for any Credit Party liabilities shall be read into this Agreement or any other Person. No Loan Document or otherwise exist against each such Agent; it being expressly understood and agreed that the use of the word "Agent" is for convenience only and that each such Agent shall have is merely the representative of the other members of the Lender Group, and has only the contractual duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless Except as expressly otherwise providedprovided in this Agreement, each such Agent shall have and may execute use its functions and duties sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which such Agent is expressly entitled to take or assert under or pursuant to this Agreement and the other Loan Documents. No member of the Lender Group shall have any right of action whatsoever against each such Agent as a result of such Agent acting or refraining from acting hereunder pursuant to such discretion and any action taken or failure to act pursuant to such discretion shall be binding on the Lender Group. Without limiting the generality of the foregoing, or of any other provision of the Loan Documents that provides rights or powers to Administrative Agent or Collateral Agent, each of the members of the Lender Group agree that, as long as this Agreement remains in effect: (a) (i) Administrative Agent shall have the right to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Revolving Credit Loans, the
(i) Administrative Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lender Group with respect to the Obligors, the Obligations, the Collections, or otherwise related to any of same as provided in the Loan Documents, and (ii) Collateral Agent shall have the right to perform, exercise, and enforce any and all other rights and remedies of the Lender Group with respect to the Obligors, the Obligations, the Collateral, or otherwise related to any of same as provided in the Loan Documents; and (g) Administrative Agent and Collateral Agent each shall have the right to incur and pay such fees, charges, and expenses under the Loan Documents as such Agent reasonably may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents. Administrative Agent may deem and treat the payee of any Obligation as the holder thereof for all purposes of the Loan Documents unless and until a notice of the assignment or transfer of such Obligation shall have been filed with Administrative Agent. Each member of the Lender Group further consents to (y) the execution, delivery, and performance by Administrative Agent or Collateral Agent of each Loan Document entered into by such Agent on behalf of the Lender Group as contemplated by this Agreement, and (z) the terms of such Loan Documents.
11.1.2 Except as otherwise provided in this section, each of Administrative Agent and Collateral Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No Each of Administrative Agent and Collateral Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made in compliance with this section and without gross negligence or willful misconduct. The duties .
11.1.3 None of each Agent the Agent-Related Persons shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any Lender. Except as expressly set forth in this Agreement and the other Loan Documents, no Agent shall have any duty to disclose, and shall not (i) be liable for failure to disclose, any information relating to any Credit Party or any of such Credit Party’s Subsidiaries or any Account Debtor that is communicated to or obtained any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s Affiliates nor any Agent’s respective officers, directors, employees, agents or representatives shall be liable to any Lender for any action taken or omitted to be taken by it hereunder any of them under or under any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct.
(b) If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any members of the Lender Group for any recital, statement, representation or warranty made by an Obligor or any Subsidiary or Affiliate of an Obligor, or any officer or director thereof, contained in this Agreement or in any other Loan Document, then the or in any certificate, report, statement or other document referred to or provided for in, or received by Administrative Agent or the Collateral Agent, as the case may be, shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or all affected Lenders, as the case may be, and neither the Administrative Agent nor the Collateral Agent shall incur liability to any Person by reason of so refraining. Each Agent shall be fully justified under or in failing connection with, this Agreement or refusing to take any action hereunder or under any other Loan Document (i) if such action wouldDocument, in the opinion of such Agent, be contrary to law or the terms validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, (ii) if such action would, in the opinion or for any failure of such Agent, expose such Agent an Obligor or any other party to Environmental Liabilities and Costs or (iii) if such Agent shall not first be indemnified any Loan Document to perform its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any member of the Lender Group to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document in accordance with Document, or to inspect the instructions properties, books or records of Required Lenders an Obligor or all affected Lenders, as applicableany of such Obligor's Subsidiaries or Affiliates.
Appears in 1 contract
Samples: Loan and Security Agreement (Questron Technology Inc)
