Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders or the Administrative Agent with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Document, such Agent 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 the Administrative Agent; and such Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, neither any Lender nor any Issuing Lender shall have any right of action whatsoever against such 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 the Required Lenders or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction of the Required Lenders or the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent shall be required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreement.
Appears in 3 contracts
Samples: Abl Credit Agreement (Pyxus International, Inc.), Abl Credit Agreement (Pyxus International, Inc.), Abl Credit Agreement (Pyxus International, Inc.)
Certain Rights of the Agents. Notwithstanding (a) The Agents may conclusively rely and shall be fully protected in acting or refraining from acting upon any provision resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note, electronic communication or other paper or document believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. Without limiting the provisions hereof, the Agents shall be entitled to the rights, benefits, immunities, indemnities and protections of the Trustee and the Collateral Agent as set forth in Article VI of the Indenture as if such rights, benefits, immunities, indemnities and protections were fully set forth herein; provided that such rights, protections, immunities, indemnities and benefits shall be in addition to any rights, protections and benefits afforded to the Agents under this Agreement; provided, further, that the foregoing shall not be construed to impose upon the Agents any of the duties or standards of care (including, without limitation, any duties of a prudent person) of the Trustee. Any request or direction of either of the Borrowers mentioned herein may be sufficiently evidenced by an Issuer Order.
(b) Whenever in the administration of this Agreement or the other Loan Documents Indenture the Agents shall (i) deem it desirable that a matter be proved or established prior to the contrarytaking, before taking suffering or omitting any action hereunder, the Agents (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officer’s Certificate or Issuer Order or (ii) be required to determine the value of any Assets or funds hereunder or the cash flows projected to be received therefrom, the Agents may, in the absence of bad faith on its part, rely on reports of nationally recognized accountants, investment bankers or other Persons qualified to provide the information required to make such determination, including nationally recognized dealers in Assets of the type being valued, securities quotation services, loan pricing services and loan valuation agents.
(c) As a condition to the taking or omitting of any action by it hereunder, the Agents may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by an Agent it hereunder in good faith and in reliance thereon.
(d) The Agents shall be under no obligation to exercise or to honor any of the terms rights or powers vested in it by this Agreement at the request or direction of any Lenders pursuant to this Agreement and the other Indenture, unless such Lenders shall have offered to the Agents security or indemnity reasonably satisfactory to the Agents against the costs, expenses (including reasonable fees and expenses of agents, experts and attorneys) and liabilities which might reasonably be incurred by it in compliance with such request or direction. The Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may shall in all cases be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon acting, or in refraining from acting, under this Agreement or any other Credit Document in accordance with a request or consent of the Majority of the Lenders (or such direction. If any Agent shall request instructions from other percentage of the Required Lenders expressly specified in this Agreement or the Administrative Agent such Credit Document with respect to any act or action (including failure to acta particular matter) given in connection accordance with this Agreement or any other Loan Document, Credit Document and such Agent request and any action taken or failure to act pursuant thereto shall be entitled binding upon all of the Lenders.
(e) The Agents shall not be bound to refrain from make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper, electronic communication or document, but each Agent, in its discretion, may, and upon the written direction of a Majority of the Controlling Class or of the Rating Agency shall (subject to the right hereunder to be reasonably satisfactorily indemnified for associated expense (including the reasonable fees and expenses of agents and counsel) and liability), make such act further inquiry or taking investigation into such action unless facts or matters as it may see fit or as it shall be directed, and until such Agent the Agents shall have received instructions from be entitled, on reasonable prior notice to the Required Lenders Borrowers and the Collateral Manager, to examine the books and records relating to the Loans, the Lender Notes and the Assets, personally or by agent or attorney, during the Borrowers’ or the Administrative Collateral Manager’s normal business hours; provided that the Agents shall, and shall cause their respective agents to, hold in confidence all such information, except (A) to the extent disclosure may be required by law or by any regulatory, administrative or Governmental Authority, (B) as otherwise required pursuant to this Agreement or (C) to the extent that the Agent, in its sole discretion, may determine that such disclosure is consistent with its obligations hereunder; provided, further, that each Agent may disclose on a confidential basis any such information to its agents, attorneys and such Agent shall not incur liability to any Person by reason auditors in connection with the performance of so refraining. Without limiting the foregoing, neither any Lender nor any Issuing Lender shall have any right of action whatsoever against such Agent as a result of such Agent acting or refraining from acting its responsibilities hereunder or under the Indenture.
(f) The Agents may execute any other Loan Document in accordance with the instructions of the Required Lenders rights, privileges or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided that neither of the Administrative Agent. In Agents shall be responsible for any misconduct or negligence on the absence part of an express statement any such agent appointed or attorney appointed with due care.
(g) Neither of the Agents shall be liable for any action it takes or omits to take in the Loan Documents regarding which Lenders shall direct in any circumstancegood faith that it reasonably believes to be authorized or within its rights or powers or within its discretion hereunder, including actions or omissions to act at the direction of the Required Lenders Collateral Manager.
(h) Any permissive rights of the Agents to take or refrain from taking actions enumerated in this Agreement or the Administrative Agent Indenture shall apply not be construed as a duty and the Agents shall not be sufficient answerable for all purposes. Each Agent may perform other than their respective gross negligence, willful misconduct or bad faith.
(i) Nothing herein shall be construed to impose an obligation on the part of the Agents to monitor, recalculate, evaluate or verify or independently determine the accuracy of any report, certificate or information received from the Borrower or Collateral Manager (unless and except to the extent otherwise expressly set forth herein) and all of its duties and exercise its rights and powers hereunder or under any other Loan Document calculations made by or through any one or more sub-the Agents appointed by such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through in their respective Related Parties. The exculpatory provisions roles hereunder shall (in the absence of this Article shall apply to any such sub- Agent manifest error) be final and to the Related Parties of such Agent and any such sub- Agent. binding on all parties.
(j) The Agents shall not be responsible or liable for the action actions or inaction omissions of, or any inaccuracies in the records of, any non-Affiliated custodian, transfer agent, paying agent or calculation agent (other than itself in such capacities), loan syndication, administrative or similar agent, DTC, Euroclear, Clearstream or any other clearing agency or depository, and without limiting the foregoing, the Agents shall not be under any obligation to monitor, evaluate, or verify compliance by the Collateral Manager or any Borrower or any other Person with the terms hereof or of the Indenture or the supervisionCollateral Management Agreement, negligence or misconduct to verify or independently determine the accuracy of information received by the Agents from the Collateral Manager (or from any sub-selling institution, agent bank, trustee or similar source) with respect to the Assets.
(k) To the extent permitted by applicable law, the Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent shall not be required to usegive any bond or surety in respect of the execution of this Agreement or the Indenture or otherwise.
(l) In making or disposing of any investment permitted by this Agreement or the Indenture, risk each of the Agents is authorized to deal with itself (in its individual capacity) or advance with any one or more of its Affiliates, in each case on an arm’s-length basis, whether it or such Affiliate is acting as a sub-agent of the Agent or for any third Person or dealing as principal for its own funds account. If otherwise qualified, obligations of the Bank or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the exercise of any of its rights and powers Affiliates shall qualify as Eligible Investments under the Loan Documents. In no event Indenture.
(m) The Agents shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent not be responsible or liable for delays or failures in performance resulting from acts circumstances beyond its control. Such acts shall include, control (such circumstances include but are not be limited to, to acts of God, strikes, lockouts, riots, acts of warwar and interruptions, epidemics, governmental regulations superimposed after the fact, fire, communication line failureslosses or malfunctions of utilities, computer viruses, power failures, earthquakes, terrorist attacks (hardware or software) or communications services).
(n) No provision of this Agreement or any other Credit Document shall require either of the Agents to expend or risk its own funds or otherwise incur any financial or other disasters. Delivery liability in the performance of reportsany of its duties hereunder, documents or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary incidental services, including mailing of notices under this Agreement.
(o) To the extent any defined term hereunder, or any calculation required to be made or determined by the Agents hereunder, is dependent upon or defined by reference to GAAP, the Agents shall be entitled to request and other information to an Agent is for informational purposes only receive (and such Agent’s conclusively rely upon) instruction from the Borrower or the accountants identified in the Accountants’ Certificate (and in the absence of its receipt of timely instruction therefrom, shall be entitled to obtain from an Independent accountant at the foregoing expense of the Borrower) as to the application of GAAP in such connection, in any instance.
(p) The Agents or their Affiliates are permitted to provide services to and to receive additional compensation that could be deemed to be in the Agents’ economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Eligible Investments, (ii) using Affiliates to effect transactions in certain Eligible Investments and (iii) effecting transactions in certain Xxxxxxxx Investments. Such compensation is not payable or reimbursable under the Indenture or this Agreement.
(q) The Agents shall not constitute constructive be deemed to have notice or knowledge of any event matter unless a Responsible Officer has actual knowledge thereof or circumstance unless written notice thereof is received by a Responsible Officer at the Corporate Trust Office and such notice references the Loans generally, the Borrower or this Agreement. Whenever reference is made in this Agreement to a Default or an Event of Default such reference shall, insofar as determining any liability on the part of the Agents is concerned, be construed to refer only to a Default or an Event of Default of which the applicable Agent is deemed to have knowledge in accordance with this paragraph.
(r) Neither Agent shall have any liability for the acts or omissions of the Collateral Manager, the Collateral Administrator, the Borrower or the Co-Borrower, any Paying Agent (if such Person is not an Agent) or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Authenticating Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall Person is not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing froman Agent) any action appointed under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral other Credit Documents.
(s) No Agent shall be liable for any losserror of judgment made in good faith by an Agent, including without limitation unless it shall be proven that such Agent was grossly negligent in ascertaining the pertinent facts.
(t) The Agents shall not be liable with respect to any loss action taken or omitted to be taken by it in good faith in accordance with the direction of principal the Borrower, the Co-Borrower, the Lenders or interestthe Collateral Manager.
(u) To help fight the funding of terrorism and money laundering activities, the Agents shall obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Agents. The Agents shall ask for the name, address, tax identification number and other information that shall allow the Agents to identify the individual or entity who is establishing the relationship or opening the account. The Agents may also ask for formation documents such as articles of incorporation, an offering memorandum or other identifying documents to be provided.
(v) Notwithstanding any breakage fees term hereof (or penalties any term of the UCC that might otherwise be construed to be applicable to a “securities intermediary” as defined in the UCC) to the contrary, neither Agent shall be under a duty or obligation in connection with the purchase acquisition or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted Grant by the Administrative Agent or Borrower to the Collateral Agent of any item constituting the Assets, or to evaluate the sufficiency of the documents or instruments delivered to it by or on behalf of the Borrower in connection with its Grant or otherwise, or in that regard to examine any electionUnderlying Document, decisionin each case, opinionin order to determine compliance with applicable requirements of and restrictions on transfer in respect of such Assets nor to re-register or otherwise change the registration or form in which the Collateral Obligations are Delivered, acceptancetransferred, use of judgment, expression of satisfaction assigned or other exercise of discretion, rights or remedies to be made (or not to be made) pledged by the Administrative Agent or Borrower to the Collateral Agent.
(w) Neither Agent is responsible or liable for the preparation, it is understood and agreed that such Agent shall be acting at the direction filing, continuation or correctness of the Required Lenders financing statements or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing validity or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements perfection of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders lien or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreementsecurity interest.
Appears in 2 contracts
Samples: Credit Agreement (Silver Point Specialty Lending Fund), Credit Agreement (Silver Point Specialty Lending Fund)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents (a) The Program Agent shall not deliver to the contraryLock-Box Banks the Notices of Effectiveness attached to the Lock-Box Agreements unless and until a Cash Control Triggering Event shall have occurred. The Seller hereby transfers to the Program Agent the exclusive ownership and control of the Lock-Box Accounts to which the Obligors of Pool Receivables shall make payments and the Cash Collateral Account.
(b) At any time following a Cash Control Triggering Event:
(i) The Program Agent may notify the Obligors of Pool Receivables (with a copy to the Investor Agents), before taking or omitting any action to be taken or omitted by an Agent at the Seller’s expense, of the ownership of Receivable Interests under the terms of this Agreement and direct that all payments be made directly to the other Loan DocumentsProgram Agent or its designee.
(ii) At the Agents’ request and at the Seller’s expense, such the Seller shall notify each Obligor of Pool Receivables (with a copy to the Program Agent may seek the written direction and each Investor Agent) of the Required Lenders ownership of Receivable Interests under this Agreement and direct that payments be made directly to the Program Agent or its designee.
(iii) At the Administrative Program Agent’s request and at the Seller’s expense, the Seller and the Collection Agent shall (which written direction may be in A) assemble all of the form of an email)documents, instruments and other records (including, without limitation, computer tapes and disks) that evidence or relate to the Pool Receivables and the related Contracts and Related Security, or that are otherwise necessary or desirable to collect the Pool Receivables, and shall make the same available to the Program Agent at a place selected by the Program Agent or its designee, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Pool Receivables in a manner acceptable to the Program Agent and, promptly upon receipt, remit all such cash, checks and instruments, duly indorsed or with duly executed instruments of transfer, to the Program Agent is entitled or its designee.
(iv) The Seller authorizes the Program Agent to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders or the Administrative Agent with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Document, such Agent 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 the Administrative Agent; and such Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, neither any Lender nor any Issuing Lender shall have any right of action whatsoever against such 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 the Required Lenders or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction of the Required Lenders or the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform take any and all of its duties steps in the Seller’s name and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-Agents appointed by such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent shall be required to use, risk Seller that are necessary or advance its own funds or otherwise incur any liability, financial or otherwisedesirable, in the performance determination of any of its duties or the exercise of any of its rights and powers Program Agent, to collect amounts due under the Loan Documents. In no event shall any Agent be liable for any consequentialPool Receivables, indirectincluding, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of without limitation, endorsing the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents Seller’s name on checks and other information to an Agent is for informational purposes only instruments representing Collections of Pool Receivables and such Agent’s receipt of enforcing the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent Pool Receivables and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; Related Security and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreementrelated Contracts.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Lexmark International Inc /Ky/), Receivables Purchase Agreement (Lexmark International Inc /Ky/)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 12.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent 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 such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall except as expressly set forth herein or in the other Credit Documents, have any duty to disclose, and shall not be liable to the Lenders for the failure to disclose, any information relating to the Borrower or any Affiliate thereof that is communicated to or obtained by the Person serving as Administrative Agent, Collateral Agent or any of their respective Affiliates in any capacity and (c) no Agent (nor any of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders as shall be necessary under the circumstances as provided in Section 11.01 or the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision12.12); provided, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to liability, financial if the Agent is not indemnified to its satisfaction, or otherwisethat is contrary to any Credit Document or applicable Legal Requirements including, for the avoidance of doubt any action that may be in violation of the performance automatic stay under the Bankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or that may affect a foreclosure, modification or termination of property of a Defaulting Lender under the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect. The Administrative Agent shall not be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any of its duties Lender to whom payment was due but not made, shall be to recover pro rata from other Lenders any payment equal to the amount to which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments received by them). The Administrative Agent and the Collateral Agent shall have no obligation to monitor whether any amendment or waiver to any Loan Document has properly become effective or is permitted hereunder or thereunder except to the extent expressly agreed to by the Administrative Agent or the exercise of any of its rights and powers under the Loan DocumentsCollateral Agent in such amendment or waiver. In no event shall any Agent be liable for any consequential, indirect, punitive failure or special loss or damage of any kind whatsoever (including loss of profit) relating to its delay in the performance of its duties their respective obligations under this Agreement or any other Loan Document irrespective related documents because of whether circumstances beyond such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its Agent’s control. Such acts shall include, including, but not be limited to, a failure, termination, or suspension of a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of God, strikesflood, lockoutswar (whether declared or undeclared), riotscivil or military disturbances or hostilities, acts of warnuclear or natural catastrophes, epidemicspolitical unrest, governmental regulations superimposed after the factexplosion, severe weather or accident, earthquake, terrorism, fire, communication line failuresriot, labor disturbances, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by this Agreement or any related documents, or the unavailability of communications or computer virusesfacilities, power failuresthe failure of equipment or interruption of communications or computer facilities, earthquakes, terrorist attacks or the unavailability of the Federal Reserve Bank wire or telex or other disasters. Delivery of reportswire or communication facility, documents and or any other information to an Agent is for informational purposes only and such causes beyond the Agent’s receipt control whether or not of the foregoing same class or kind as specified above. Nothing in this Agreement or any other Credit Document shall not constitute constructive knowledge require the Administrative Agent or the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any event of its duties or circumstance in the exercise of any of its rights or powers hereunder. The Agents shall have no obligation for (a) perfecting, maintaining, monitoring, preserving or protecting the security interest or Lien granted under this Agreement, any other Credit Document, or any information contained therein agreement or determinable from information contained therein. Information contained in noticesinstrument contemplated hereby or thereby; (b) the filing, reports re-filing, recording, re-recording, or continuing of any document, financing statement, mortgage, assignment, notice, instrument of further assurance, or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If instrument in any public office at any time an or times; or (c) providing, maintaining, monitoring, or preserving insurance on or the payment of taxes with respect to any Collateral. The Agents shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Lender or (y) have any liability with respect to or arising out of any assignment or participation of Term Loans, or disclosure of confidential information, to any Disqualified Lender. The Administrative Agent is served does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the administration of, submission of, calculation of or any judicial other matter related to SOFR or administrative orderany component definition thereof or rates referenced in the definition thereof or any alternative, judgmentcomparable or successor rate thereto (including any then-current Benchmark or any Benchmark Replacement), decreeincluding whether the composition or characteristics of any such alternative, writ comparable or successor rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, SOFR or any other form Benchmark Replacement, or (b) the effect, implementation or composition of judicial or administrative process any Benchmark Replacement Conforming Changes (including, but not limited to, orders of attachment determining whether any Benchmark Replacement Conforming Changes, if any, are necessary or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other countryadvisable). The Administrative Agent shall be under no duty or obligation (i) to monitor, determine or verify the availability, cessation or replacement of any Benchmark, or the occurrence of any Benchmark Transition Event or Benchmark Replacement Date, or (ii) to identify, determine or select any Benchmark Replacement, any Benchmark Replacement Adjustment, or other replacement benchmark or any replacement or successor index. The Administrative Agent shall not have any liability for any interest rate published on any publicly available source (including but not limited to the right Federal Reserve Bank of New York’s Website), by any publication or other source for determining any interest rates applicable to withhold amounts from any payments under Loan, including, without limitation, any inaccuracy or error relating to the Loan Documents, and publication of any such interest rates. The Administrative Agent shall not be liable for such withholdingany delay or failure in performing its duties under this Agreement directly or indirectly as a result of the unavailability of any Benchmark or the absence of a designated replacement Benchmark, including as required a result of any delay or error on the part of any other Person, or whether as a result of any other Person providing or failing to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as provide the Administrative Agent and Collateral Agent, shall have no liability with any information or direction pursuant to the Loan Partiesterms of this Agreement or any Credit Document other than, in each case, to the extent of the Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable decision. Nothing in this Section shall constitute a representation or warranty by Holdings, the Lenders Borrower or any other Person in connection with of their Subsidiaries nor can it constitute the basis of any tax withholding amounts paid Default or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this AgreementEvent of Default.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (J.Jill, Inc.), Subordinated Term Loan Credit Agreement (J.Jill, Inc.)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 12.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent 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 such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall except as expressly set forth herein or in the other Credit Documents, have any duty to disclose, and shall not be liable to the Lenders for the failure to disclose, any information relating to the Borrower or any Affiliate thereof that is communicated to or obtained by the Person serving as Administrative Agent, Collateral Agent or any of their respective Affiliates in any capacity and (c) no Agent (nor any of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders as shall be necessary under the circumstances as provided in Section 11.01 or the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervisionSection 12.12); provided, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to liability, financial if the Agent is not indemnified to its satisfaction, or otherwisethat is contrary to any Credit Document or applicable Legal Requirements including, for the avoidance of doubt any action that may be in violation of the performance automatic stay under the Bankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or that may affect a foreclosure, modification or termination of property of a Defaulting Lender under the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect. The Administrative Agent shall not be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any of its duties Lender to whom payment was due but not made, shall be to recover pro rata from other Lenders any payment equal to the amount to which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments received by them). The Administrative Agent and the Collateral Agent shall have no obligation to monitor whether any amendment or waiver to any Loan Document has properly become effective or is permitted hereunder or thereunder except to the extent expressly agreed to by the Administrative Agent or the exercise of any of its rights and powers under the Loan DocumentsCollateral Agent in such amendment or waiver. In no event shall any Agent be liable for any consequential, indirect, punitive failure or special loss or damage of any kind whatsoever (including loss of profit) relating to its delay in the performance of its duties their respective obligations under this Agreement or any other Loan Document irrespective related documents because of whether circumstances beyond such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its Agent’s control. Such acts shall include, including, but not be limited to, a failure, termination, or suspension of a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of God, strikesflood, lockoutswar (whether declared or undeclared), riotscivil or military disturbances or hostilities, acts of warnuclear or natural catastrophes, epidemicspolitical unrest, governmental regulations superimposed after the factexplosion, severe weather or accident, earthquake, terrorism, fire, communication line failuresriot, labor disturbances, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by this Agreement or any related documents, or the unavailability of communications or computer virusesfacilities, power failuresthe failure of equipment or interruption of communications or computer facilities, earthquakes, terrorist attacks or the unavailability of the Federal Reserve Bank wire or telex or other disasters. Delivery of reportswire or communication facility, documents and or any other information to an Agent is for informational purposes only and such causes beyond the Agent’s receipt control whether or not of the foregoing same class or kind as specified above. Nothing in this Agreement or any other Credit Document shall not constitute constructive knowledge require the Administrative Agent or the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any event of its duties or circumstance in the exercise of any of its rights or powers hereunder. The Agents shall have no obligation for (a) perfecting, maintaining, monitoring, preserving or protecting the security interest or Lien granted under this Agreement, any other Credit Document, or any information contained therein agreement or determinable from information contained therein. Information contained in noticesinstrument contemplated hereby or thereby; (b) the filing, reports re-filing, recording, re-recording, or continuing of any document, financing statement, mortgage, assignment, notice, instrument of further assurance, or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If instrument in any public office at any time an or times; or (c) providing, maintaining, monitoring, or preserving insurance on or the payment of taxes with respect to any Collateral. The Agents shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Lender or (y) have any liability with respect to or arising out of any assignment or participation of Term Loans, or disclosure of confidential information, to any Disqualified Lender. The Administrative Agent is served does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the administration of, submission of, calculation of or any judicial other matter related to SOFR or administrative orderany component definition thereof or rates referenced in the definition thereof or any alternative, judgmentcomparable or successor rate thereto (including any then-current Benchmark or any Benchmark Replacement), decreeincluding whether the composition or characteristics of any such alternative, writ comparable or successor rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, SOFR or any other form Benchmark Replacement, or (b) the effect, implementation or composition of judicial or administrative process any Benchmark Replacement Conforming Changes (including, but not limited to, orders of attachment determining whether any Benchmark Replacement Conforming Changes, if any, are necessary or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other countryadvisable). The Administrative Agent shall be under no duty or obligation (i) to monitor, determine or verify the availability, cessation or replacement of any Benchmark, or the occurrence of any Benchmark Transition Event or Benchmark Replacement Date, or (ii) to identify, determine or select any Benchmark Replacement, any Benchmark Replacement Adjustment, or other replacement benchmark or any replacement or successor index. The Administrative Agent shall not have any liability for any interest rate published on any publicly available source (including but not limited to the right Federal Reserve Bank of New York’s Website), by any publication or other source for determining any interest rates applicable to withhold amounts from any payments under Loan, including, without limitation, any inaccuracy or error relating to the Loan Documents, and publication of any such interest rates. The Administrative Agent shall not be liable for such withholdingany delay or failure in performing its duties under this Agreement directly or indirectly as a result of the unavailability of any Benchmark or the absence of a designated replacement Benchmark, including as required a result of any delay or error on the part of any other Person, or whether as a result of any other Person providing or failing to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as provide the Administrative Agent and Collateral Agent, shall have no liability with any information or direction pursuant to the Loan Partiesterms of this Agreement or any Credit Document other than, in each case, to the extent of the Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable decision. Nothing in this Section shall constitute a representation or warranty by Holdings, the Lenders Borrower or any other Person in connection with of its Subsidiaries nor can it constitute the basis of any tax withholding amounts paid Default or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this AgreementEvent of Default.
Appears in 1 contract
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent Lead Lender (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders or the Administrative Agent Lead Lender with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Document, such Agent 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 the Administrative AgentLead Lender; and such Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, neither any Lender nor any Issuing Lender shall have any right of action whatsoever against such 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 the Required Lenders or the Administrative AgentLead Lender. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction of the Required Lenders or the Administrative Agent Lead Lender shall apply and be sufficient for all purposes. 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 agents appointed by such Agent. Such Agent and any such sub- Agent sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent sub-agent and to the Related Parties of such Agent and any such sub- Agentsub-agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent shall be required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each The Lead Lender shall direct the applicable Agent may, in its discretion, writing to invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investmentinstructions from the Lead Lender, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. The Lead Lender acknowledges that upon its written request and at no additional cost, it has the right to receive notification after the completion of each purchase and sale of permitted investments or the applicable Agent’s receipt of a broker’s confirmation. The Lead Lender agrees that such notifications shall not be provided by the Agents and the Agents shall make available, upon request and in lieu of notifications, periodic account statements that reflect such investment activity. No statement need be made available for any account if no activity has occurred in such account during such period. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent Lead Lender and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Xxxxx Fargo Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan PartiesBorrower, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Partythe Borrower’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreement.
Appears in 1 contract
Samples: Exit Abl Credit Agreement (Pyxus International, Inc.)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 13.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent 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 such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders or as shall be necessary under the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervisioncircumstances as provided in Section 12.01 or13.12); provided, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to liability, financial if the Agent is not indemnified to its satisfaction, or otherwisethat is contrary to any Credit Document or applicable Legal Requirements including, for the avoidance of doubt any action that may be in violation of the performance of any of its duties or the exercise of any of its rights and powers automatic stay under the Loan DocumentsBankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or that may affect a foreclosure, modification or termination of property of a Defaulting Lender under the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect. In no event The Administrative Agent does not warrant or accept responsibility for, and shall not have any Agent be liable for any consequentialliability with respect to (a) the administration of, indirectsubmission of, punitive or special loss or damage calculation of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective matter related to SOFR or any component definition thereof or rates referenced in the definition thereof or any alternative, comparable or successor rate thereto (including any then-current Benchmark or any Benchmark Replacement), including whether the composition or characteristics of whether any such Agent has been advised of the likelihood of such loss alternative, comparable or damage and regardless of the form of action. In no event shall successor rate (including any Agent Benchmark Replacement) will be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited similar to, acts of Godor produce the same value or economic equivalence of, strikesor have the same volume or liquidity as, lockoutsSOFR or any other Benchmark Replacement, riotsor (b) the effect, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks implementation or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge composition of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process Benchmark Replacement Conforming Changes (including, but not limited to, orders of attachment determining whether any Benchmark Replacement Conforming Changes, if any, are necessary or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other countryadvisable). The Administrative Agent shall be under no duty or obligation (i) to monitor, determine or verify the availability, cessation or replacement of any Benchmark, or the occurrence of any Benchmark Transition Event or Benchmark Replacement Date, or (ii) to identify, determine or select any Benchmark Replacement, any Benchmark Replacement Adjustment, or other replacement benchmark or any replacement or successor index. The Administrative Agent shall not have any liability for any interest rate published on any publicly available source (including but not limited to the right Federal Reserve Bank of New York’s Website), by any publication or other source for determining any interest rates applicable to withhold amounts from any payments under Loan, including, without limitation, any inaccuracy or error relating to the Loan Documents, and publication of any such interest rates. The Administrative Agent shall not be liable for such withholdingany delay or failure in performing its duties under this Agreement directly or indirectly as a result of the unavailability of any Benchmark or the absence of a designated replacement Benchmark, including as required a result of any delay or error on the part of any other Person, or whether as a result of any other Person providing or failing to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as provide the Administrative Agent and Collateral Agent, shall have no liability with any information or direction pursuant to the Loan Partiesterms of this Agreement or any Credit Document other than, in each case, to the extent of the Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable decision. Nothing in this Section shall constitute a representation or warranty by Parent, the Lenders Company or any other Person in connection with of their Subsidiaries nor can it constitute the basis of any tax withholding amounts paid Default or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this AgreementEvent of Default.
Appears in 1 contract
Samples: Abl Credit Agreement (J.Jill, Inc.)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 12.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent 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 such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders or as shall be necessary under the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents circumstances as provided in Section 12.12); provided that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to 130 liability, financial or otherwise, in if the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating is not indemnified to its performance of its duties under this Agreement satisfactory, or that is contrary to any other Loan Credit Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (applicable Legal Requirements including, but not limited to, orders for the avoidance of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) doubt any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it in violation of the automatic stay under the terms Bankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of such creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other agreement applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or agreements). Prior to any paymentthat may effect a foreclosure, distribution modification or transfer termination of funds by an Agent to any Person property of a Defaulting Lender under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or informationBankruptcy Code, and so long as such documentation or information remain accurate and true). The Agents shall have no dutyall other liquidation, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Personconservatorship, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent maybankruptcy, in its discretionassignment for the benefit of creditors, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investmentmoratorium, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any lossrearrangement, including without limitation any loss of principal or interestreceivership, insolvency, reorganization, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms similar debtor relief laws of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request United States or other communication from, or other direction given or action applicable jurisdictions from time to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected time in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreement.effect
Appears in 1 contract
Samples: Term Loan Credit Agreement
Certain Rights of the Agents. Notwithstanding (a) The Agents may conclusively rely and shall be fully protected in acting or refraining from acting upon any provision resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. In addition, the Agents shall be entitled to the rights, benefits and protection of the Collateral Trustee as set forth in Article VI of the Indenture; any request or direction of the Borrower mentioned herein may be sufficiently evidenced by an Issuer Order;
(b) whenever in the administration of this Agreement or the other Loan Documents Indenture the Agents shall (i) deem it desirable that a matter be proved or established prior to the contrarytaking, before taking suffering or omitting any action hereunder, the Agents (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or Issuer Order or (ii) be required to determine the value of any Collateral or funds hereunder or the cash flows projected to be received therefrom, the Agents may, in the absence of bad faith on its part, rely on reports of nationally recognized accountants, investment bankers or other Persons qualified to provide the information required to make such determination, including nationally recognized dealers in Assets of the type being valued, securities quotation services, loan pricing services and loan valuation agents;
(c) as a condition to the taking or omitting of any action by it hereunder, the Agents may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by an Agent it hereunder in good faith and in reliance thereon;
(d) the Agents shall be under no obligation to exercise or to honor any of the terms rights or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request or direction of any Lenders pursuant to this Agreement and the other Indenture, unless such Lenders shall have offered to the Agents security or indemnity reasonably satisfactory to the Agents against the costs, expenses and liabilities which might reasonably be incurred by it in compliance with such request or direction. The Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may shall in all cases be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon acting, or in refraining from acting, under this Agreement or any other Credit Document in accordance with a request or consent of the Majority of the Lenders (or such direction. If any Agent shall request instructions from other percentage of the Required Lenders expressly specified in this Agreement or the Administrative Agent such Credit Document with respect to any act or action (including failure to acta particular matter) given in connection accordance with this Agreement or any other Loan DocumentCredit Document and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Lenders;
(e) the Agents shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper or document, but the Agents, in their discretion, may, and upon the written direction of a Majority of the Controlling Class or of the Rating Agency shall (subject to the right hereunder to be reasonably satisfactorily indemnified for associated expense and liability), make such Agent further inquiry or investigation into such facts or matters as it may see fit or as it shall be directed, and the Agents shall be entitled, on reasonable prior notice to the Borrower and the Collateral Manager, to examine the books and records relating to the Secured Debt, the Preferred Shares and the Assets, personally or by agent or attorney, during the Borrower’s or the Collateral Manager’s normal business hours; provided that the Agents shall, and shall cause its agents to, hold in confidence all such information, except (i) to the extent disclosure may be required by law by any regulatory, administrative or governmental authority and (ii) to the extent that the Agents, in their sole discretion, may determine that such disclosure is consistent with its obligations hereunder; provided further that the Agents may disclose on a confidential basis any such information to its agents, attorneys and auditors in connection with the performance of its responsibilities hereunder;
(f) the Agents may execute any of the rights, privileges or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided that, neither of the Agents shall be responsible for any misconduct or negligence on the part of any such agent or attorney appointed by it with due care;
(g) neither of the Agents shall be liable for any action it takes, suffers or omits to take in good faith that it reasonably believes to be authorized or within its rights or powers or hereunder, including actions or omissions to act at the direction of the Collateral Manager;
(h) nothing herein shall be construed to impose an obligation on the part of the Agents to monitor, recalculate, evaluate or verify any report or independently determine the accuracy of any report, certificate or information received from the Borrower or Collateral Manager (unless and except to the extent otherwise expressly set forth herein) and all calculations made by the Agents in their respective roles hereunder shall (in the absence of manifest error) be final and binding on all parties;
(i) to the extent any defined term hereunder, or any calculation required to be made or determined by the Trustee hereunder, is dependent upon or defined by reference to generally accepted accounting principles (as in effect in the United States) (“GAAP”), the Agents shall be entitled to refrain from such act or taking such action unless request and until such Agent shall have received instructions receive (and rely upon) instruction from the Required Lenders Borrower or the Administrative Agent; accountants identified in the Accountants’ Report (and in the absence of its receipt of timely instruction therefrom, shall be entitled to obtain from an Independent accountant at the expense of the Borrower) as to the application of GAAP in such Agent connection, in any instance;
(j) the Agents shall not incur liability to be liable for the actions or omissions of, or any Person by reason of so refraining. Without inaccuracies in the records of, the Collateral Manager, the Borrower, any Paying Agent (other than the Agents and the Collateral Trustee), DTC, Euroclear, Clearstream, or any other clearing agency or depository and without limiting the foregoing, neither the Agents shall not be under any Lender nor obligation to monitor, evaluate or verify compliance by the Collateral Manager with the terms hereof or of the Collateral Management Agreement, or to verify or independently determine the accuracy of information received by the Trustee from the Collateral Manager (or from any Issuing Lender shall have selling institution, agent bank, trustee or similar source) with respect to the Assets;
(k) any permissive right of action whatsoever against such Agent the Trustee to take or refrain from taking actions enumerated herein shall not be construed as a result duty;
(l) to the extent permitted by applicable law, the Agents shall not be required to give any bond or surety in respect of the execution of this Agreement or otherwise;
(m) except as otherwise provided herein, the Agents shall not be deemed to have notice or knowledge of any matter unless a Trust Officer has actual knowledge thereof or unless written notice thereof is received by the Agent at the Corporate Trust Office and such Agent acting notice references the Secured Debt generally, the Borrower, this Agreement or refraining from acting hereunder the Indenture. Whenever reference is made herein to a Default or under an Event of Default such reference shall, insofar as determining any other Loan Document liability on the part of the Agents are concerned, be construed to refer only to a Default or an Event of Default of which the Agents is deemed to have knowledge in accordance with this paragraph;
(n) the instructions of the Required Lenders or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction of the Required Lenders or the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent shall be required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts circumstances beyond its control. Such acts shall include, control (such circumstances include but are not be limited to, to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failuresloss or malfunctions of utilities, computer viruses(hardware or software) or communications services);
(o) to help fight the funding of terrorism and money laundering activities, power failuresthe Agent will obtain, earthquakesverify, terrorist attacks and record information that identifies individuals or other disastersentities that establish a relationship or open an account with the Agent. Delivery of reportsThe Agent will ask for the name, documents address, tax identification number and other information that will allow the Agent to identify the individual or entity who is establishing the relationship or opening the account. The Agent may also ask for formation documents such as organizational documents, an offering memorandum, or other identifying documents to be provided;
(p) the Agent is or their respective Affiliates are permitted to receive additional compensation that could be deemed to be in the Agents economic self-interest for informational purposes only and such Agent’s receipt (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or subcustodian with respect to certain of the foregoing shall Eligible Investments, (ii) using Affiliates to effect transactions in certain Eligible Investments and (iii) effecting transactions in certain Eligible Investments. Such compensation is not constitute constructive knowledge of any event payable or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action reimbursable under or pursuant to, the Loan Documents, each Agent shall have all Section 6.7 of the rights, immunities, indemnities and other protections granted to it under this Agreement Indenture; and
(in addition to those that may be granted to it under q) the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability duty (i) to make any payment see to any Person unless they have timely received such documentation and information with respect to such Personrecording, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent mayfiling, in its discretion, invest in Cash Equivalents or depositing of the Indenture or any funds held by such Agent under the Loan Documents. Absent such investment, funds in supplemental indenture or any account held by the Administrative Agent financing statement or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or continuation statement evidencing a security interest, or for any breakage fees or penalties in connection with to see to the purchase or liquidation maintenance of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein such recording, filing or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent depositing or to any electionrerecording, decision, opinion, acceptance, use of judgment, expression of satisfaction refiling or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements redepositing of any other country). The Administrative Agent shall have the right thereof or (ii) to withhold amounts from maintain any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreementinsurance.
Appears in 1 contract
Samples: Class a Lr Credit Agreement (Blue Owl Capital Corp)
Certain Rights of the Agents. Notwithstanding (a) The Agents may conclusively rely and shall be fully protected in acting or refraining from acting upon any provision resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. Without limiting the provisions hereof, the Agents shall be entitled to the rights, benefits, immunities, indemnities and protections of the Trustee and the Collateral Agent as set forth in Article VI of the Indenture as if such rights, benefits, immunities, indemnities and protections were fully set forth herein; provided that such rights, protections, immunities, indemnities and benefits shall be in addition to any rights, protections and benefits afforded to the Agents under this Agreement. Any request or direction of either of the Borrowers mentioned herein may be sufficiently evidenced by an Issuer Order.
(b) Whenever in the administration of this Agreement or the other Loan Documents Indenture the Agents shall (i) deem it desirable that a matter be proved or established prior to the contrarytaking, before taking suffering or omitting any action hereunder, the Agents (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or Issuer Order or (ii) be required to determine the value of any Assets or funds hereunder or the cash flows projected to be received therefrom, the Agents may, in the absence of bad faith on its part, rely on reports of nationally recognized accountants, investment bankers or other Persons qualified to provide the information required to make such determination, including nationally recognized dealers in Assets of the type being valued, securities quotation services, loan pricing services and loan valuation agents.
(c) As a condition to the taking or omitting of any action by it hereunder, the Agents may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by an Agent it hereunder in good faith and in reliance thereon.
(d) The Agents shall be under no obligation to exercise or to honor any of the terms rights or powers vested in it by this Agreement at the request or direction of any Lenders pursuant to this Agreement and the other Indenture, unless such Lenders shall have offered to the Agents security or indemnity reasonably satisfactory to the Agents against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities which might reasonably be incurred by it in compliance with such request or direction. The Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may shall in all cases be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon acting, or in refraining from acting, under this Agreement or any other Credit Document in accordance with a request or consent of the Majority of the Lenders (or such direction. If any Agent shall request instructions from other percentage of the Required Lenders expressly specified in this Agreement or the Administrative Agent such Credit Document with respect to any act or action (including failure to acta particular matter) given in connection accordance with this Agreement or any other Loan Document, Credit Document and such Agent request and any action taken or failure to act pursuant thereto shall be entitled binding upon all of the Lenders.
(e) The Agents shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper or document, but each Agent, in its discretion, may, and upon the written direction of a Majority of the Controlling Class or of each Rating Agency shall (subject to the right hereunder to be reasonably satisfactorily indemnified for associated expense (including the reasonable fees and expenses of agents and counsel) and liability), make such further inquiry or investigation into such facts or matters as it may see fit or as it shall be directed, and the Agents shall be entitled, on reasonable prior notice to the Borrowers and the Collateral Manager, to examine the books and records relating to the Loans, the Notes and the Assets, personally or by agent or attorney, during the Borrowers’ or the Collateral Manager’s normal business hours; provided that the Agents shall, and shall cause their respective agents to, hold in confidence all such information, except (A) to the extent disclosure may be required by law or by any regulatory, administrative or Governmental Authority, (B) as otherwise required pursuant to this Agreement or (C) to the extent that the Agent, in its sole discretion, may determine that such disclosure is consistent with its obligations hereunder; provided, further, that each Agent may disclose on a confidential basis any such information to its agents, attorneys and auditors in connection with the performance of its responsibilities hereunder or under the Indenture.
(f) The Agents may execute any of the rights, privileges or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided that neither of the Agents shall be responsible for any misconduct or negligence on the part of any such agent appointed or attorney appointed with due care.
(g) Neither of the Agents shall be liable for any action it takes or omits to take in good faith that it reasonably believes to be authorized or within its rights or powers hereunder, including actions or omissions to act at the direction of the Collateral Manager.
(h) Any permissive rights of the Agents to take or refrain from such act taking actions enumerated in this Agreement or taking such action the Indenture shall not be construed as a duty and the Agents shall not be answerable for other than their respective gross negligence, willful misconduct or bad faith.
(i) Nothing herein shall be construed to impose an obligation on the part of the Agents to monitor, recalculate, evaluate or verify or independently determine the accuracy of any report, certificate or information received from the Borrower or Collateral Manager (unless and until such Agent except to the extent otherwise expressly set forth herein) and all calculations made by the Agents in their respective roles hereunder shall have received instructions from (in the Required Lenders or the Administrative Agent; absence of manifest error) be final and such Agent binding on all parties.
(j) The Agents shall not incur liability to be liable for the actions or omissions of, or any Person by reason of so refraining. Without inaccuracies in the records of, any non-Affiliated custodian, transfer agent, paying agent or calculation agent (other than itself in such capacities), DTC, Euroclear, Clearstream or any other clearing agency or depository, and without limiting the foregoing, neither any Lender nor any Issuing Lender the Agents shall have any right of action whatsoever against such Agent as a result of such Agent acting or refraining from acting hereunder or not be under any other Loan Document in accordance obligation to monitor, evaluate, or verify compliance by the Collateral Manager with the instructions terms hereof or of the Required Lenders Indenture or the Administrative Agent. In Collateral Management Agreement, or to verify or independently determine the absence accuracy of an express statement in information received by the Loan Documents regarding which Lenders shall direct in Agents from the Collateral Manager (or from any circumstanceselling institution, agent bank, trustee or similar source) with respect to the Assets.
(k) To the extent permitted by applicable law, the direction Agents shall not be required to give any bond or surety in respect of the Required Lenders execution of this Agreement or the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform Indenture or otherwise.
(l) In making or disposing of any and all investment permitted by this Agreement or the Indenture, each of the Agents is authorized to deal with itself (in its duties and exercise its rights and powers hereunder individual capacity) or under any other Loan Document by or through with any one or more of its Affiliates, in each case on an arm’s-length basis, whether it or such Affiliate is acting as a sub-Agents appointed by such Agentagent of the Agent or for any third Person or dealing as principal for its own account. Such Agent and If otherwise qualified, obligations of the Bank or any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article Affiliates shall apply to any such sub- Agent and to qualify as Eligible Investments under the Related Parties of such Agent and any such sub- Agent. Indenture.
(m) The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent shall be required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts circumstances beyond its control. Such acts shall include, control (such circumstances include but are not be limited to, to acts of God, strikes, lockouts, riots, acts of warwar and interruptions, epidemics, governmental regulations superimposed after the fact, fire, communication line failureslosses or malfunctions of utilities, computer viruses, power failures, earthquakes, terrorist attacks (hardware or software) or communications services).
(n) No provision of this Agreement or any other Credit Document shall require either of the Agents to expend or risk its own funds or otherwise incur any financial or other disasters. Delivery liability in the performance of reportsany of its duties hereunder, documents or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary incidental services, including mailing of notices under this Agreement.
(o) To the extent any defined term hereunder, or any calculation required to be made or determined by the Agents hereunder, is dependent upon or defined by reference to GAAP, the Agents shall be entitled to request and other information to an Agent is for informational purposes only receive (and such Agent’s conclusively rely upon) instruction from the Borrower or the accountants identified in the Accountants’ Certificate (and in the absence of its receipt of timely instruction therefrom, shall be entitled to obtain from an Independent accountant at the foregoing expense of the Borrower) as to the application of GAAP in such connection, in any instance.
(p) The Agents or their Affiliates are permitted to receive additional compensation that could be deemed to be in the Agents’ economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Eligible Investments, (ii) using Affiliates to effect transactions in certain Eligible Investments and (iii) effecting transactions in certain Eligible Investments. Such compensation is not payable or reimbursable under the Indenture or this Agreement.
(q) The Agents shall not constitute constructive be deemed to have notice or knowledge of any event matter unless a Responsible Officer has actual knowledge thereof or circumstance unless written notice thereof is received by a Responsible Officer at the Corporate Trust Office and such notice references the Loans generally, the Borrower or this Agreement. Whenever reference is made in this Agreement to a Default or an Event of Default such reference shall, insofar as determining any liability on the part of the Agents is concerned, be construed to refer only to a Default or an Event of Default of which the applicable Agent is deemed to have knowledge in accordance with this paragraph.
(r) Neither Agent shall have any liability for the acts or omissions of the Collateral Manager, the Collateral Administrator, the Borrower or the Co-Borrower, any Paying Agent (if such Person is not an Agent) or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Authenticating Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall Person is not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing froman Agent) any action appointed under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral other Credit Documents.
(s) No Agent shall be liable for any losserror of judgment made in good faith by an Agent, including without limitation unless it shall be proven that such Agent was grossly negligent in ascertaining the pertinent facts.
(t) The Agents shall not be liable with respect to any loss action taken or omitted to be taken by it in good faith in accordance with the direction of principal the Borrower, the Co-Borrower, the Lenders or interestthe Collateral Manager.
(u) To help fight the funding of terrorism and money laundering activities, the Agents shall obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Agents. The Agents shall ask for the name, address, tax identification number and other information that shall allow the Agents to identify the individual or entity who is establishing the relationship or opening the account. The Agents may also ask for formation documents such as articles of incorporation, an offering memorandum or other identifying documents to be provided.
(v) Notwithstanding any breakage fees term hereof (or penalties any term of the UCC that might otherwise be construed to be applicable to a “securities intermediary” as defined in the UCC) to the contrary, the Loan Agent shall not be under a duty or obligation in connection with the purchase acquisition or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted Grant by the Administrative Agent or Borrower to the Collateral Agent of any item constituting the Assets, or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by evaluate the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction sufficiency of the Required Lenders documents or instruments delivered to it by or on behalf of the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person Borrower in connection with its Grant or otherwise, or in that regard to examine any tax withholding amounts paid or withheld pursuant Underlying Document, in each case, in order to determine compliance with applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct requirements of and complete IRS Form W-9, an appropriate IRS Form W-8 or restrictions on transfer in respect of such other documentation contemplated under this AgreementAssets.
Appears in 1 contract
Samples: Credit Agreement (PennantPark Floating Rate Capital Ltd.)
Certain Rights of the Agents. Notwithstanding any provision of (a) Whenever reference is made in this Agreement or the any other Loan Documents Credit Document to the contraryany discretionary consent, before taking election, designation, approval, acceptance or omitting use of judgment by, or any consent or other discretionary action to or remedies that may be taken or omitted withheld by an any Agent, the Agent under the terms of this Agreement and the other Loan Documentsshall not be obligated to take (or refrain from taking) such action if it shall not have received such written instruction, such Agent may seek the written direction advice or concurrence of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such directionLenders. If any Agent shall request instructions from the Required Lenders or the Administrative Agent with respect to any such discretionary act or action (including any failure to so act) in connection with this Agreement or any other Loan Credit Document, such Agent shall not be entitled obligated to take (or refrain from such act or taking taking) such action unless and until such Agent shall have received instructions from the Required Lenders or the Administrative AgentLenders; and such Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, neither no Lender or holder of any Lender nor any Issuing Lender Note shall have any right of action whatsoever against such any Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Credit Document in accordance with the instructions of the Required Lenders or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction of the Required Lenders or the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. .
(b) No Agent shall be required obligated to use, expend or risk or advance any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder or under any other Credit Document, or in the exercise of any of its rights and powers under the Loan Documents. In no event or powers, if it shall any Agent be liable have reasonable grounds for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood believing that repayment of such loss funds or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted indemnity satisfactory to it under this Agreement (in addition to those that may be granted to it under the terms of against such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation risk or liability is not assured to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agentit. Each An Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only or any other Credit Document if such action would, in the reasonable opinion of such Agent, violate applicable law or any provision this Agreement or any other Credit Document.
(and in c) In no event shall the Administrative any Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholdingany failure or delay in the performance of its obligations under this Agreement or any Credit Documents, as required nor be deemed to comply with applicable law. PNC Bankbe in breach of its duties hereunder or thereunder, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Partiesextent such failure, delay or breach is because of circumstances beyond the Lenders Agent’s control, including, but not limited to, a failure, termination, or suspension of a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of God, flood, war (whether declared or undeclared), civil or military disturbances or hostilities, epidemic or pandemic, nuclear or natural catastrophes, political unrest, explosion, severe weather or accident, earthquake, terrorism, fire, riot, labor disturbances, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by this Agreement or any other Person in connection with Credit Document, or the unavailability of communications or computer facilities, the failure of equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, or any tax withholding amounts paid other causes beyond the Agent’s control whether or withheld pursuant to applicable law arising from any Loan Party’s not of the same class or a Lender’s failure, kind as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreementspecified above.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 13.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent 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 such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders or as shall be necessary under the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervisioncircumstances as provided in Section 13.12); provided, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to liability, financial or otherwise, in if the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating is not indemnified to its performance of its duties under this Agreement satisfactory, or that is contrary to any other Loan Credit Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (applicable Legal Requirements including, but not limited to, orders for the avoidance of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) doubt any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it in violation of the automatic stay under the terms Bankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of such creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other agreement applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or agreements). Prior to any paymentthat may affect a foreclosure, distribution modification or transfer termination of funds by an Agent to any Person property of a Defaulting Lender under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or informationBankruptcy Code, and so long as such documentation or information remain accurate and true). The Agents shall have no dutyall other liquidation, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Personconservatorship, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent maybankruptcy, in its discretionassignment for the benefit of creditors, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investmentmoratorium, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any lossrearrangement, including without limitation any loss of principal or interestreceivership, insolvency, reorganization, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms similar debtor relief laws of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request United States or other communication from, or other direction given or action applicable jurisdictions from time to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected time in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreementeffect.
Appears in 1 contract
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 12.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent 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 such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders or as shall be necessary under the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents circumstances as provided in Section 12.12); provided that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to liability, financial or otherwise, in if the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating is not indemnified to its performance of its duties under this Agreement satisfactory, or that is contrary to any other Loan Credit Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (applicable Legal Requirements including, but not limited to, orders for the avoidance of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) doubt any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it in violation of the automatic stay under the terms Bankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of such creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other agreement applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or agreements). Prior to any paymentthat may effect a foreclosure, distribution modification or transfer termination of funds by an Agent to any Person property of a Defaulting Lender under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or informationBankruptcy Code, and so long as such documentation or information remain accurate and true). The Agents shall have no dutyall other liquidation, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Personconservatorship, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent maybankruptcy, in its discretionassignment for the benefit of creditors, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investmentmoratorium, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any lossrearrangement, including without limitation any loss of principal or interestreceivership, insolvency, reorganization, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms similar debtor relief laws of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request United States or other communication from, or other direction given or action applicable jurisdictions from time to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected time in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreement.effect
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Certain Rights of the Agents. Notwithstanding (a) The Agents may conclusively rely and shall be fully protected in acting or refraining from acting upon any provision resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. In addition, the Agents shall be entitled to the rights, benefits and protection of the Collateral Trustee as set forth in Article VI of the Indenture; any request or direction of either of the Borrowers mentioned herein may be sufficiently evidenced by an Issuer Order;
(b) whenever in the administration of this Agreement or the other Loan Documents Indenture the Agents shall (i) deem it desirable that a matter be proved or established prior to the contrarytaking, before taking suffering or omitting any action hereunder, the Agents (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or Issuer Order or (ii) be required to determine the value of any Collateral or funds hereunder or the cash flows projected to be received therefrom, the Agents may, in the absence of bad faith on its part, rely on reports of nationally recognized accountants, investment bankers or other Persons qualified to provide the information required to make such determination, including nationally recognized dealers in Assets of the type being valued, securities quotation services, loan pricing services and loan valuation agents;
(c) as a condition to the taking or omitting of any action by it hereunder, the Agents may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by an Agent it hereunder in good faith and in reliance thereon;
(d) the Agents shall be under no obligation to exercise or to honor any of the terms rights or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request or direction of any Lenders pursuant to this Agreement and the other Indenture, unless such Lenders shall have offered to the Agents security or indemnity reasonably satisfactory to the Agents against the costs, expenses and liabilities which might reasonably be incurred by it in compliance with such request or direction. The Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may shall in all cases be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon acting, or in refraining from acting, under this Agreement or any other Credit Document in accordance with a request or consent of the Majority of the Lenders (or such direction. If any Agent shall request instructions from other percentage of the Required Lenders expressly specified in this Agreement or the Administrative Agent such Credit Document with respect to any act or action (including failure to acta particular matter) given in connection accordance with this Agreement or any other Loan DocumentCredit Document and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Lenders;
(e) the Agents shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper or document, but the Agents, in their discretion, may, and upon the written direction of a Majority of the Controlling Class or of the Rating Agency shall (subject to the right hereunder to be reasonably satisfactorily indemnified for associated expense and liability), make such Agent further inquiry or investigation into such facts or matters as it may see fit or as it shall be directed, and the Agents shall be entitled, on reasonable prior notice to the Borrowers and the Collateral Manager, to examine the books and records relating to the Secured Debt, the Subordinated Securities and the Assets, personally or by agent or attorney, during the Borrowers’ or the Collateral Manager’s normal business hours; provided that the Agents shall, and shall cause its agents to, hold in confidence all such information, except (i) to the extent disclosure may be required by law by any regulatory, administrative or governmental authority and (ii) to the extent that the Agents, in their sole discretion, may determine that such disclosure is consistent with its obligations hereunder; provided further that the Agents may disclose on a confidential basis any such information to its agents, attorneys and auditors in connection with the performance of its responsibilities hereunder;
(f) the Agents may execute any of the rights, privileges or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided that, neither of the Agents shall be responsible for any misconduct or negligence on the part of any such agent or attorney appointed by it with due care;
(g) neither of the Agents shall be liable for any action it takes, suffers or omits to take in good faith that it reasonably believes to be authorized or within its rights or powers or hereunder, including actions or omissions to act at the direction of the Collateral Manager;
(h) nothing herein shall be construed to impose an obligation on the part of the Agents to monitor, recalculate, evaluate or verify any report or independently determine the accuracy of any report, certificate or information received from the Borrower or Collateral Manager (unless and except to the extent otherwise expressly set forth herein) and all calculations made by the Agents in their respective roles hereunder shall (in the absence of manifest error) be final and binding on all parties;
(i) to the extent any defined term hereunder, or any calculation required to be made or determined by the Trustee hereunder, is dependent upon or defined by reference to generally accepted accounting principles (as in effect in the United States) (“GAAP”), the Agents shall be entitled to refrain from such act or taking such action unless request and until such Agent shall have received instructions receive (and rely upon) instruction from the Required Lenders Issuer or the Administrative Agent; accountants identified in the Accountants’ Report (and in the absence of its receipt of timely instruction therefrom, shall be entitled to obtain from an Independent accountant at the expense of the Borrower) as to the application of GAAP in such Agent connection, in any instance;
(j) the Agents shall not incur liability to be liable for the actions or omissions of, or any Person by reason of so refraining. Without inaccuracies in the records of, the Collateral Manager, the Borrower, the Co-Borrower, any Paying Agent (other than the Agents and the Collateral Trustee), DTC, Euroclear, Clearstream, or any other clearing agency or depository and without limiting the foregoing, neither the Agents shall not be under any Lender nor obligation to monitor, evaluate or verify compliance by the Collateral Manager with the terms hereof or of the Collateral Management Agreement, or to verify or independently determine the accuracy of information received by the Trustee from the Collateral Manager (or from any Issuing Lender shall have selling institution, agent bank, trustee or similar source) with respect to the Assets;
(k) any permissive right of action whatsoever against such Agent the Trustee to take or refrain from taking actions enumerated herein shall not be construed as a result duty;
(l) to the extent permitted by applicable law, the Agents shall not be required to give any bond or surety in respect of the execution of this Agreement or otherwise;
(m) except as otherwise provided herein, the Agents shall not be deemed to have notice or knowledge of any matter unless a Trust Officer has actual knowledge thereof or unless written notice thereof is received by the Agent at the Corporate Trust Office and such Agent acting notice references the Secured Debt generally, the Borrowers, this Agreement or refraining from acting hereunder the Indenture. Whenever reference is made herein to a Default or under an Event of Default such reference shall, insofar as determining any other Loan Document liability on the part of the Agents are concerned, be construed to refer only to a Default or an Event of Default of which the Agents is deemed to have knowledge in accordance with this paragraph;
(n) the instructions of the Required Lenders or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction of the Required Lenders or the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent shall be required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts circumstances beyond its control. Such acts shall include, control (such circumstances include but are not be limited to, to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failuresloss or malfunctions of utilities, computer viruses(hardware or software) or communications services);
(o) to help fight the funding of terrorism and money laundering activities, power failuresthe Agent will obtain, earthquakesverify, terrorist attacks and record information that identifies individuals or other disastersentities that establish a relationship or open an account with the Agent. Delivery of reportsThe Agent will ask for the name, documents address, tax identification number and other information that will allow the Agent to identify the individual or entity who is establishing the relationship or opening the account. The Agent may also ask for formation documents such as organizational documents, an offering memorandum, or other identifying documents to be provided;
(p) the Agent is or their respective Affiliates are permitted to receive additional compensation that could be deemed to be in the Agents economic self-interest for informational purposes only and such Agent’s receipt (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or subcustodian with respect to certain of the foregoing shall Eligible Investments, (ii) using Affiliates to effect transactions in certain Eligible Investments and (iii) effecting transactions in certain Eligible Investments. Such compensation is not constitute constructive knowledge of any event payable or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action reimbursable under or pursuant to, the Loan Documents, each Agent shall have all Section 6.7 of the rights, immunities, indemnities and other protections granted to it under this Agreement Indenture; and
(in addition to those that may be granted to it under q) the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability duty (i) to make any payment see to any Person unless they have timely received such documentation and information with respect to such Personrecording, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent mayfiling, in its discretion, invest in Cash Equivalents or depositing of the Indenture or any funds held by such Agent under the Loan Documents. Absent such investment, funds in supplemental indenture or any account held by the Administrative Agent financing statement or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or continuation statement evidencing a security interest, or for any breakage fees or penalties in connection with to see to the purchase or liquidation maintenance of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein such recording, filing or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent depositing or to any electionrerecording, decision, opinion, acceptance, use of judgment, expression of satisfaction refiling or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements redepositing of any other country). The Administrative Agent shall have the right thereof or (ii) to withhold amounts from maintain any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreementinsurance.
Appears in 1 contract
Certain Rights of the Agents. Notwithstanding (a) The Agents may conclusively rely and shall be fully protected in acting or refraining from acting upon any provision resolution, certificate, statement, instrument, judgment, opinion, report, notice, request, direction, consent, order, note or other paper, electronic communication or document believed by it to be genuine and to have been signed or presented by the proper party or parties; provided that any electronically signed document delivered via electronic mail or other transmission method from a person purporting to be an Authorized Officer shall be considered signed or executed by such Authorized Officer on behalf of the applicable Person, and the Agents shall have no duty to inquire into or investigate the authenticity or authorization of any such electronic signature and shall be entitled to conclusively rely on any such electronic signature without any liability with respect thereto. Without limiting the provisions hereof, the Agents shall be entitled to the rights, benefits, immunities, indemnities and protections of the Collateral Trustee as set forth in Article VI of the Indenture as if such rights, benefits, immunities, indemnities and protections were fully set forth herein; provided that such rights, protections, immunities, indemnities and benefits shall be in addition to any rights, protections and benefits afforded to the Agents under this Agreement; provided, further, that the foregoing shall not be construed to impose upon the Agents any of the duties or standards of care (including, without limitation, any duties of a prudent person) of the Collateral Trustee. Any request or direction of the Borrower mentioned herein may be sufficiently evidenced by an Issuer Order.
(b) Whenever in the administration of this Agreement or the other Loan Documents Indenture the Agents shall (i) deem it desirable that a matter be proved or established prior to the contrarytaking, before taking suffering or omitting any action hereunder, the Agents (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or Issuer Order or (ii) be required to determine the value of any Assets or funds hereunder or the cash flows projected to be received therefrom, the Agents may, in the absence of bad faith on its part, rely on reports of nationally recognized accountants, investment bankers or other Persons qualified to provide the information required to make such determination, including nationally recognized dealers in securities of the type being valued and securities quotation services.
(c) As a condition to the taking or omitting of any action by it hereunder, the Agents may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by an Agent it hereunder in good faith and in reliance thereon.
(d) The Agents shall be under no obligation to exercise or to honor any of the terms rights or powers vested in it by this Agreement at the request or direction of any Lenders pursuant to this Agreement and the Indenture, unless such Lenders shall have offered to the Agents security or indemnity reasonably satisfactory to the Agents against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities which might reasonably be incurred by it in compliance with such request or direction.
(e) The Agents shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other Loan Documentspaper, such Agent may seek electronic communication or document, but each Agent, in its discretion, may, and upon the written direction of a Majority of the Required Lenders Controlling Class or of the Rating Agency shall (subject to the right hereunder to be reasonably satisfactorily indemnified for associated expense (including the reasonable fees and expenses of agents and counsel) and liability), make such further inquiry or investigation into such facts or matters as it may see fit or as it shall be directed, and the Agents shall be entitled, on reasonable prior notice to the Borrower and the Collateral Manager, to examine the books and records relating to the Loans, the other Debt and the Assets, personally or by agent or attorney, during the Borrower’s or the Administrative Agent Collateral Manager’s normal business hours; provided that the Agents shall, and shall cause their respective agents to, hold in confidence all such information, except (which written direction A) to the extent disclosure may be required by law or by any regulatory, administrative or governmental authority, (B) as otherwise required pursuant to this Agreement or (C) to the extent that the Agent, in the form of an email)its sole discretion, may determine that such disclosure is consistent with its obligations hereunder; provided, further, that each Agent may disclose on a confidential basis any such information to its agents, attorneys and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders or the Administrative Agent with respect to any act or action (including failure to act) auditors in connection with the performance of its responsibilities hereunder or under the Indenture.
(f) The Agents may execute any of the rights, privileges or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided that neither of the Agents shall be responsible for any actions or omissions on the part of any such agent appointed or attorney appointed with due care.
(g) Neither of the Agents shall be liable for any action it takes or omits to take in good faith that it reasonably believes to be authorized or within its rights or powers hereunder, including actions or omissions to act at the direction of the Collateral Manager.
(h) Any permissive rights of the Agents to take or refrain from taking actions enumerated in this Agreement or the Indenture shall not be construed as a duty and the Agents shall not be answerable for other than their respective gross negligence, willful misconduct or bad faith.
(i) Nothing herein shall be construed to impose an obligation on the part of the Agents to monitor, recalculate, evaluate or verify or independently determine the accuracy of any report, certificate or information received from the Borrower or Collateral Manager (unless and except to the extent otherwise expressly set forth herein) and all calculations made by the Agents in their respective roles hereunder shall (in the absence of manifest error) be final and binding on all parties.
(j) The Agents shall not be liable for the actions or omissions of, or any inaccuracies in the records of, any non-Affiliated custodian, transfer agent, paying agent or calculation agent (other than itself in such capacities), DTC, Euroclear, Clearstream or any other Loan Documentclearing agency or depository, such Agent 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 the Administrative Agent; and such Agent shall not incur liability to any Person by reason of so refraining. Without without limiting the foregoing, neither any Lender nor any Issuing Lender the Agents shall have any right of action whatsoever against such Agent as a result of such Agent acting or refraining from acting hereunder or not be under any other Loan Document in accordance obligation to monitor, evaluate, or verify compliance by the Collateral Manager with the instructions terms hereof or of the Required Lenders Indenture or the Administrative Agent. In Collateral Management Agreement, or to verify or independently determine the absence accuracy of an express statement in information received by the Loan Documents regarding which Lenders shall direct in Agents from the Collateral Manager (or from any circumstanceselling institution, agent bank, trustee or similar source) with respect to the Assets.
(k) To the extent permitted by applicable law, the direction Agents shall not be required to give any bond or surety in respect of the Required Lenders execution of this Agreement or the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform Indenture or otherwise.
(l) In making or disposing of any and all investment permitted by this Agreement or the Indenture, each of the Agents is authorized to deal with itself (in its duties and exercise its rights and powers hereunder individual capacity) or under any other Loan Document by or through with any one or more of its Affiliates, in each case on an arm’s-length basis, whether it or such Affiliate is acting as a sub-Agents appointed by such Agentagent of the Agent or for any third Person or dealing as principal for its own account. Such Agent and If otherwise qualified, obligations of the Bank or any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article Affiliates shall apply to any such sub- Agent and to qualify as Eligible Investments under the Related Parties of such Agent and any such sub- Agent. Indenture.
(m) The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent shall be required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts circumstances beyond its control. Such acts shall include, control (such circumstances include but are not be limited to, to acts of God, strikes, lockouts, riots, acts of warwar and interruptions, epidemics, governmental regulations superimposed after the fact, fire, communication line failureslosses or malfunctions of utilities, computer viruses, power failures, earthquakes, terrorist attacks (hardware or software) or communications services).
(n) No provision of this Agreement or any other Credit Document shall require either of the Agents to expend or risk its own funds or otherwise incur any financial or other disasters. Delivery liability in the performance of reportsany of its duties hereunder, documents or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary incidental services, including mailing of notices under this Agreement.
(o) To the extent any defined term hereunder, or any calculation required to be made or determined by the Agents hereunder, is dependent upon or defined by reference to GAAP, the Agents shall be entitled to request and other information to an Agent is for informational purposes only receive (and such Agent’s conclusively rely upon) instruction from the Borrower or the accountants identified in the Accountants’ Certificate (and in the absence of its receipt of timely instruction therefrom, shall be entitled to obtain from an Independent accountant at the foregoing expense of the Borrower) as to the application of GAAP in such connection, in any instance.
(p) The Agents or their Affiliates are permitted to receive additional compensation that could be deemed to be in the Agents’ economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Eligible Investments, (ii) using Affiliates to effect transactions in certain Eligible Investments and (iii) effecting transactions in certain Eligible Investments. Such compensation is not payable or reimbursable under the Indenture or this Agreement.
(q) The Agents shall not constitute constructive be deemed to have notice or knowledge of any event matter unless a Responsible Officer has actual knowledge thereof or circumstance unless written notice thereof is received by a Responsible Officer at the Corporate Trust Office and such notice references the Loans generally, the Borrower or this Agreement. Whenever reference is made in this Agreement to a Default or an Event of Default such reference shall, insofar as determining any liability on the part of the Agents is concerned, be construed to refer only to a Default or an Event of Default of which the applicable Agent is deemed to have knowledge in accordance with this paragraph.
(r) Neither Agent shall have any liability for the acts or omissions of the Collateral Manager, the Collateral Administrator, the Borrower, any Paying Agent (if such Person is not an Agent) or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Authenticating Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall Person is not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing froman Agent) any action appointed under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral other Credit Documents.
(s) No Agent shall be liable for any losserror of judgment made in good faith by an Agent, including without limitation unless it shall be proven that such Agent was grossly negligent or otherwise acted in bad faith or with willful misconduct in ascertaining the pertinent facts.
(t) The Agents shall not be liable with respect to any loss action taken or omitted to be taken by it in good faith in accordance with the direction of principal the Borrower, the Lenders or interestthe Collateral Manager.
(u) To help fight the funding of terrorism and money laundering activities, the Agents shall obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Agents. The Agents shall ask for the name, address, tax identification number and other information that shall allow the Agents to identify the individual or entity who is establishing the relationship or opening the account. The Agents may also ask for formation documents such as articles of incorporation, an offering memorandum or other identifying documents to be provided.
(v) Notwithstanding any breakage fees term hereof (or penalties any term of the UCC that might otherwise be construed to be applicable to a “securities intermediary” as defined in the UCC) to the contrary, the Loan Agent shall not be under a duty or obligation in connection with the purchase acquisition or liquidation Grant by the Borrower to the Collateral Trustee of any investment made in accordance with item constituting the terms Assets, or to evaluate the sufficiency of the Loan Documents. Notwithstanding anything else documents or instruments delivered to the contrary herein it by or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction on behalf of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person Borrower in connection with its Grant or otherwise, or in that regard to examine any tax withholding amounts paid or withheld pursuant Underlying Document, in each case, in order to determine compliance with applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct requirements of and complete IRS Form W-9, an appropriate IRS Form W-8 or restrictions on transfer in respect of such other documentation contemplated under this AgreementAssets.
Appears in 1 contract
Certain Rights of the Agents. Notwithstanding any provision (a) After the occurrence and during the continuance of this Agreement an Event of Termination or an Incipient Event of Termination, the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Program Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email)and, and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders or the Administrative Agent with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Document, such Agent 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 the Administrative Agent; and such Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, neither any Lender nor any Issuing Lender shall have any right of action whatsoever against such 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 the Required Lenders or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction of the Required Lenders or the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent shall be required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of any Agent, the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Program Agent shall act as notify the withholding agent under this Agreement with respect to U.S. withholding only (Obligors of Pool Receivables and in no event shall Participated Receivables, at any time and at the Administrative Agent have any dutyBorrower's expense, obligation or liability with respect to of the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated security interest granted under this Agreement.
(b) At any time after the occurrence and during the continuance of an Event of Termination or an Incipient Event of Termination:
(i) The Program Agent may, and, at the direction of any Agent, the Program Agent shall to the extent permitted under applicable law, direct the Obligors of Pool Receivables and Participated Receivables that all payments thereunder be made directly to the Program Agent or its designee.
(ii) At any Agent's request and at the Borrower's expense, the Borrower shall notify each Obligor of Pool Receivables and Participated Receivables of the security interest in the Receivables or Participated Receivables granted under this Agreement and direct that payments be made directly to the Program Agent or its designee.
(c) At any time:
(i) At any Agent's request and at the Borrower's expense, the Borrower and the Collection Agent shall (A) assemble all of the documents, instruments and other records (including, without limitation, computer tapes and disks) that evidence or relate to the Pool Receivables and Participated Receivables and the related Contracts and Related Security, or that are otherwise necessary or desirable to collect the Pool Receivables and Participated Receivables, and shall make the same available to the Program Agent at a place selected by the Program Agent or its designee, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Pool Receivables and Participated Receivables in a manner acceptable to the Agents and, promptly upon receipt, remit all such cash, checks and instruments, duly indorsed or with duly executed instruments of transfer, to the Program Agent or its designee.
(ii) The Borrower authorizes the Program Agent to take any and all steps in the Borrower's name and on behalf of the Borrower that are necessary or desirable, in the determination of any Agent, to collect amounts due under the Pool Receivables and Participated Receivables, including, without limitation, endorsing the Borrower's name on checks and other instruments representing Collections of Pool Receivables and Participated Receivables and enforcing the Pool Receivables and Participated Receivables and the Related Security and related Contracts.
Appears in 1 contract
Certain Rights of the Agents. Notwithstanding (a) The Agents may conclusively rely and shall be fully protected in acting or refraining from acting upon any provision resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper, electronic communication or document believed by it to be genuine and to have been signed or presented by the proper party or parties; provided that any electronically signed document delivered via electronic mail or other transmission method from a person purporting to be an Authorized Officer shall be considered signed or executed by such Authorized Officer on behalf of the applicable Person, and the Loan Agent shall have no duty to inquire into or investigate the authenticity or authorization of any such electronic signature and shall be entitled to conclusively rely on any such electronic signature without any liability with respect thereto. Without limiting the provisions hereof, the Agents shall be entitled to the rights, benefits, immunities, indemnities and protections of the Collateral Trustee as set forth in Article VI of the Indenture as if such rights, benefits, immunities, indemnities and protections were fully set forth herein; provided that such rights, protections, immunities, indemnities and benefits shall be in addition to any rights, protections and benefits afforded to the Agents under this Agreement; provided, further, that the foregoing shall not be construed to impose upon the Agents any of the duties or standards of care (including, without limitation, any duties of a prudent person) of the Collateral Trustee. Any request or direction of the Borrower mentioned herein shall be sufficiently evidenced by an Issuer Order.
(b) Whenever in the administration of this Agreement or the other Loan Documents Indenture the Agents shall (i) deem it desirable that a matter be proved or established prior to the contrarytaking, before taking suffering or omitting any action hereunder, the Agents (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officer’s Certificate or Issuer Order or (ii) be required to determine the value of any Assets or funds hereunder or the cash flows projected to be received therefrom, the Agents may, in the absence of bad faith on its part, rely on reports of nationally recognized accountants, investment bankers or other Persons qualified to provide the information required to make such determination, including nationally recognized dealers in Assets of the type being valued, securities quotation services, loan pricing services and loan valuation agents.
(c) As a condition to the taking or omitting of any action by it hereunder, the Agents may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by an Agent it hereunder in good faith and in reliance thereon.
(d) The Agents shall be under no obligation to exercise or to honor any of the terms rights or powers vested in it by this Agreement at the request or direction of any Lenders pursuant to this Agreement and the other Indenture, unless such Lenders shall have offered to the Agents security or indemnity reasonably satisfactory to the Agents against the costs, expenses (including reasonable fees and expenses of agents, experts and attorneys) and liabilities which might reasonably be incurred by it in compliance with such request or direction. The Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may shall in all cases be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon acting, or in refraining from acting, under this Agreement or any other Credit Document in accordance with a request or consent of the Majority of the Lenders (or such direction. If any Agent shall request instructions from other percentage of the Required Lenders expressly specified in this Agreement or the Administrative Agent such Credit Document with respect to any act or action (including failure to acta particular matter) given in connection accordance with this Agreement or any other Loan Document, Credit Document and such Agent request and any action taken or failure to act pursuant thereto shall be entitled binding upon all of the Lenders.
(e) The Agents shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper, electronic communication or document, but each Agent, in its discretion, may, and upon the written direction of a Majority of the Controlling Class or of the Rating Agency shall (subject to the right hereunder to be reasonably satisfactorily indemnified for associated expense (including the reasonable fees and expenses of agents and counsel) and liability), make such further inquiry or investigation into such facts or matters as it may see fit or as it shall be directed, and the Agents shall be entitled, on reasonable prior notice to the Borrower and the Collateral Manager, to examine the books and records relating to the Loans, the Notes and the Assets, personally or by agent or attorney, during the Borrower’s or the Collateral Manager’s normal business hours; provided that the Agents shall, and shall cause their respective agents to, hold in confidence all such information, except (A) to the extent disclosure may be required by law or by any regulatory, administrative or Governmental Authority, (B) as otherwise required pursuant to this Agreement or (C) to the extent that the Agent, in its sole discretion, may determine that such disclosure is consistent with its obligations hereunder; provided, further, that each Agent may disclose on a confidential basis any such information to its agents, attorneys and auditors in connection with the performance of its responsibilities hereunder or under the Indenture.
(f) The Agents may execute any of the rights, privileges or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided that neither of the Agents shall be responsible for any misconduct or negligence on the part of any such agent appointed or attorney appointed with due care.
(g) Neither of the Agents shall be liable for any action it takes or omits to take in good faith that it reasonably believes to be authorized or within its rights or powers hereunder, including actions or omissions to act at the direction of the Collateral Manager.
(h) Any permissive rights of the Agents to take or refrain from such act taking actions enumerated in this Agreement or taking such action the Indenture shall not be construed as a duty and the Agents shall not be answerable for other than their respective gross negligence, willful misconduct or bad faith.
(i) Nothing herein shall be construed to impose an obligation on the part of the Agents to monitor, recalculate, evaluate or verify or independently determine the accuracy of any report, certificate or information received from the Borrower or Collateral Manager (unless and until such Agent except to the extent otherwise expressly set forth herein) and all calculations made by the Agents in their respective roles hereunder shall have received instructions from (in the Required Lenders or the Administrative Agent; absence of manifest error) be final and such Agent binding on all parties.
(j) The Agents shall not incur liability to be liable for the actions or omissions of, or any Person by reason of so refraining. Without inaccuracies in the records of, the Borrower, the Collateral Manager, any non-Affiliated custodian, transfer agent, paying agent or calculation agent (other than itself in such capacities), DTC, Euroclear, Clearstream or any other clearing agency or depository, and without limiting the foregoing, neither any Lender nor any Issuing Lender the Agents shall have any right of action whatsoever against such Agent as a result of such Agent acting or refraining from acting hereunder or not be under any other Loan Document in accordance obligation to monitor, evaluate, or verify compliance by the Collateral Manager with the instructions terms hereof or of the Required Lenders Indenture or the Administrative Agent. In Collateral Management Agreement, or to verify or independently determine the absence accuracy of an express statement in information received by the Loan Documents regarding which Lenders shall direct in Agents from the Collateral Manager (or from any circumstanceselling institution, agent bank, trustee or similar source) with respect to the Assets.
(k) To the extent permitted by applicable law, the direction Agents shall not be required to give any bond or surety in respect of the Required Lenders execution of this Agreement or the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform Indenture or otherwise.
(l) In making or disposing of any and all investment permitted by this Agreement or the Indenture, each of the Agents is authorized to deal with itself (in its duties and exercise its rights and powers hereunder individual capacity) or under any other Loan Document by or through with any one or more of its Affiliates, in each case on an arm’s-length basis, whether it or such Affiliate is acting as a sub-Agents appointed by such Agentagent of the Agent or for any third Person or dealing as principal for its own account. Such Agent and If otherwise qualified, obligations of the Bank or any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article Affiliates shall apply to any such sub- Agent and to qualify as Eligible Investments under the Related Parties of such Agent and any such sub- Agent. Indenture.
(m) The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent shall be required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts circumstances beyond its control. Such acts shall include, control (such circumstances include but are not be limited to, to acts of God, strikes, lockouts, riots, acts of warwar and interruptions, epidemics, governmental regulations superimposed after the fact, fire, communication line failureslosses or malfunctions of utilities, computer viruses(hardware or software) or communications services), power failuresany act or provision of any present or future law or regulation or governmental authority, earthquakesnatural disaster, terrorist attacks terrorism, civil unrest, accidents, labor disputes, disease, epidemic or pandemic, quarantine, national emergency, malware or ransomware, unavailability of the Federal Reserve Bank wire or telex system or other disasterswire or other funds transfer systems, or unavailability of any securities clearing system), it being understood that the Loan Agent shall use reasonable best efforts to maintain performance.
(n) No provision of this Agreement or any other Credit Document shall require either of the Agents to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary incidental services, including mailing of notices under this Agreement.
(o) To the extent any defined term hereunder, or any calculation required to be made or determined by the Agents hereunder, is dependent upon or defined by reference to GAAP, the Agents shall be entitled to request and receive (and conclusively rely upon) instruction from the Borrower or the accountants identified in the Accountants’ Certificate (and in the absence of its receipt of timely instruction therefrom, shall be entitled to obtain from an Independent accountant at the expense of the Borrower) as to the application of GAAP in such connection, in any instance.
(p) The Agents or their Affiliates are permitted to receive additional compensation that could be deemed to be in the Agents’ economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Eligible Investments, (ii) using Affiliates to effect transactions in certain Eligible Investments and (iii) effecting transactions in certain Eligible Investments. Such compensation is not payable or reimbursable under the Indenture or this Agreement.
(q) The Agents shall not be deemed to have notice or knowledge of any matter unless a Responsible Officer has actual knowledge thereof or unless written notice thereof is received by a Responsible Officer at the Corporate Trust Office and such notice references the Loans generally, the Borrower or this Agreement. Whenever reference is made in this Agreement to a Default or an Event of Default such reference shall, insofar as determining any liability on the part of the Agents is concerned, be construed to refer only to a Default or an Event of Default of which the applicable Agent is deemed to have knowledge in accordance with this paragraph. Delivery of any written reports, information or documents and other information to an the Loan Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge notice of any event or circumstance or any information contained therein or determinable from therefrom unless such report, information contained therein. Information contained in notices, reports or other documents delivered document is expressly addressed to an the Loan Agent and other publicly available information delivered in accordance with the notice provisions of this Agreement.
(r) Neither Agent shall not constitute actual have any liability for the acts or constructive knowledge. If at omissions of the Collateral Manager, the Collateral Administrator, the Borrower, any time an Paying Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Person is not an Agent) or any Authenticating Agent complies with any (if such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall Person is not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing froman Agent) any action appointed under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral other Credit Documents.
(s) No Agent shall be liable for any losserror of judgment made in good faith by an Agent, including without limitation unless it shall be proven that such Agent was grossly negligent in ascertaining the pertinent facts.
(t) The Agents shall not be liable with respect to any loss action taken or omitted to be taken by it in good faith in accordance with the direction of principal the Borrower, the Lenders or interestthe Collateral Manager.
(u) To help fight the funding of terrorism and money laundering activities, the Agents shall obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Agents. The Agents shall ask for the name, address, tax identification number and other information that shall allow the Agents to identify the individual or entity who is establishing the relationship or opening the account. The Agents may also ask for formation documents such as articles of incorporation, an offering memorandum or other identifying documents to be provided.
(v) Notwithstanding any breakage fees term hereof (or penalties any term of the UCC that might otherwise be construed to be applicable to a “securities intermediary” as defined in the UCC) to the contrary, the Loan Agent shall not be under a duty or obligation in connection with the purchase acquisition or liquidation Grant by the Borrower to the Collateral Trustee of any investment made item constituting the Assets, or to evaluate the sufficiency of the documents or instruments delivered to it by or on behalf of the Borrower in accordance connection with its Grant or otherwise, or in that regard to examine any Underlying Document, in each case, in order to determine compliance with applicable requirements of and restrictions on transfer in respect of such Assets.
(w) Neither the Loan Agent nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Borrowers, the Collateral Manager or any of their directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the terms malfeasance or nonfeasance by such party. The Loan Agent may assume performance by all such Persons of their respective obligations. The Loan Agent shall have no enforcement obligations relating to breaches of representations or warranties of any other Person.
(x) In the event that the Bank is also acting in the capacity of Paying Agent, Registrar, Calculation Agent, Authenticating Agent, Custodian, Securities Intermediary or Collateral Administrator, the rights, protections, benefits, immunities and indemnities afforded to the Loan Documents. Notwithstanding anything else Agent pursuant to this Article VII hereof shall also be afforded to the contrary herein or Bank acting in such capacities; provided that such rights, protections, benefits immunities and indemnities shall be in addition to any rights, protections, benefits, immunities and indemnities provided herein, in the other Loan DocumentsIndenture, whenever reference is made in this the Securities Account Control Agreement or the Collateral Administration Agreement, or any other Loan Document document to any discretionary action bywhich the Bank in such capacity is a party; provided, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by however that the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and foregoing shall not be liable for such withholding, as required construed to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as impose upon the Administrative Agent and Collateral Paying Agent, shall have no liability to Note Registrar, Authenticating Agent, Custodian, Calculation Agent, Collateral Administrator or Securities Intermediary any of the Loan Partiesduties or standards of care (including, without limitation, any duties of a prudent person, if any) of the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this AgreementTrustee.
Appears in 1 contract
Samples: Credit Agreement (AG Twin Brook Capital Income Fund)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relyinga) upon such direction. If any Agent shall request instructions from the Required Lenders or the Administrative Agent with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Document, such Agent 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 the Administrative Agent; and such Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, neither any Lender nor any Issuing Lender shall have any right of action whatsoever against such 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 the Required Lenders or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction of the Required Lenders or the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent shall be required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent conclusively rely and shall be fully protected in acting pursuant or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper or document believed by it to such directionsbe genuine and to have been signed or presented by the proper party or parties. In all cases Without limiting the provisions hereof, the Agents shall be entitled to the rights, benefits, immunities, indemnities and protections of the Collateral Trustee as set forth in Article VI of the Indenture as if such rights, benefits, immunities, indemnities and protections were fully justified set forth herein; provided that such rights, protections, immunities, indemnities and benefits shall be in failing or refusing addition to take any such action rights, protections and benefits afforded to the Agents under this Agreement; provided, further, that the Loan Documents if they foregoing shall not be construed to impose upon the Agents any of the duties or standards of care (including, without limitation, any duties of a prudent person) of the Collateral Trustee. Any request or direction of the Borrower mentioned herein may be sufficiently evidenced by an Issuer Order.
(b) Whenever in the administration of this Agreement or the Indenture the Agents shall (i) deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Agents (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officer’s Certificate or Issuer Order or (ii) be required to determine the value of any Assets or funds hereunder or the cash flows projected to be received therefrom, the Agents may, in the absence of bad faith on its part, rely on reports of nationally recognized accountants, investment bankers or other Persons qualified to provide the information required to make such determination, including nationally recognized dealers in Assets of the type being valued, securities quotation services, loan pricing services and loan valuation agents.
(c) As a condition to the taking or omitting of any action by it hereunder, the Agents may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in reliance thereon.
(d) The Agents shall be under no obligation to exercise or to honor any of the rights or powers vested in it by this Agreement at the request or direction of any Lenders pursuant to this Agreement and the Indenture, unless such Lenders shall have received provided to the Agents security or indemnity reasonably satisfactory to the Agents against the costs, expenses (including reasonable fees and expenses of agents, experts and attorneys) and liabilities which might reasonably be incurred by it in compliance with such request or direction, instruction, advice or concurrence. The Administrative Loan Agent shall act as the withholding agent in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Credit Document in accordance with a request or consent of the Majority of the Lenders (or such other percentage of the Lenders expressly specified in this Agreement or such Credit Document with respect to U.S. withholding only a particular matter) given in accordance with this Agreement or any other Credit Document and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Lenders.
(e) The Agents shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper, electronic communication or document, but each Agent, in its discretion, may, and in no event upon the written direction of a Majority of the Controlling Class or of the Rating Agency shall the Administrative Agent have any duty, obligation or liability with respect (subject to the withholding laws right hereunder to be reasonably satisfactorily indemnified for associated expense (including the reasonable fees and expenses of agents, experts and counsel) and liability), make such further inquiry or requirements investigation into such facts or matters as it may see fit or as it shall be directed, and the Agents shall be entitled, on reasonable prior notice to the Borrower and the Collateral Manager, to examine the books and records relating to the Loans, the Notes and the Assets, personally or by agent or attorney, during the Borrower’s or the Collateral Manager’s normal business hours; provided that the Agents shall, and shall cause their respective agents to, hold in confidence all such information, except (A) to the extent disclosure may be required by law or by any regulatory, administrative or Governmental Authority, (B) as otherwise required pursuant to this Agreement or (C) to the extent that the Agent, in its sole discretion, may determine that such disclosure is consistent with its obligations hereunder; provided, further, that each Agent may disclose on a confidential basis any such information to its agents, attorneys and auditors in connection with the performance of its responsibilities hereunder or under the Indenture.
(f) The Agents may execute any of the rights, privileges or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided that neither of the Agents shall be responsible for any acts or omissions on the part of any such agent appointed or attorney appointed with due care.
(g) Neither of the Agents shall be liable for any action it takes or omits to take in good faith that it reasonably believes to be authorized or within its rights or powers hereunder, including actions or omissions to act at the direction of the Collateral Manager.
(h) Any permissive rights of the Agents to take or refrain from taking actions enumerated in this Agreement or the Indenture shall not be construed as a duty and the Agents shall not be answerable for other country). than their respective gross negligence, willful misconduct or bad faith.
(i) Nothing herein shall be construed to impose an obligation on the part of the Agents to monitor, recalculate, evaluate or verify or independently determine the accuracy of any report, certificate or information received from the Borrower or Collateral Manager (unless and except to the extent otherwise expressly set forth herein) and all calculations made by the Agents in their respective roles hereunder shall (in the absence of manifest error) be final and binding on all parties.
(j) The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and Agents shall not be liable for the actions or omissions of, or any inaccuracies in the records of, the Collateral Manager, the Borrower, any non-Affiliated custodian, transfer agent, paying agent or calculation agent (other than itself in such withholdingcapacities), as DTC, Euroclear, Clearstream or any other clearing agency or depository, and without limiting the foregoing, the Agents shall not be under any obligation to monitor, evaluate, or verify compliance by the Collateral Manager with the terms hereof or of the Indenture or the Collateral Management Agreement, or to verify or independently determine the accuracy of information received by the Agents from the Borrower or Collateral Manager (or from any selling institution, agent bank, trustee or similar source) with respect to the Assets.
(k) Unless prohibited by applicable law, the Agents shall not be required to comply give any bond or surety in respect of the execution of this Agreement or the Indenture or otherwise.
(l) In making or disposing of any investment permitted by this Agreement or the Indenture, each of the Agents is authorized to deal with applicable law. PNC Bank, National Association, both itself (in its individual capacity capacity) or with any one or more of its Affiliates, in each case on an arm’s-length basis, whether it or such Affiliate is acting as a sub-agent of the Agent or for any third Person or dealing as principal for its own account. If otherwise qualified, obligations of the Bank or any of its Affiliates shall qualify as Eligible Investments under the Indenture.
(m) [Reserved].
(n) [Reserved].
(o) To the extent any defined term hereunder, or any calculation required to be made or determined by the Agents hereunder, is dependent upon or defined by reference to GAAP, the Agents shall be entitled to request and receive (and conclusively rely upon) instruction from the Borrower or the accountants identified in the Accountants’ Certificate (and in the absence of its receipt of timely instruction therefrom, shall be entitled to obtain from an Independent accountant at the expense of the Borrower) as to the application of GAAP in such connection, in any instance.
(p) The Agents or their Affiliates are permitted to receive additional compensation that could be deemed to be in the Agents’ economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Eligible Investments, (ii) using Affiliates to effect transactions in certain Eligible Investments and (iii) effecting transactions in certain Eligible Investments. Such compensation is not payable or reimbursable under the Indenture or this Agreement.
(q) [Reserved].
(r) [Reserved].
(s) [Reserved].
(t) [Reserved].
(u) [Reserved].
(v) Notwithstanding any term hereof (or any term of the UCC that might otherwise be construed to be applicable to a “securities intermediary” as defined in the UCC) to the contrary, the Loan Agent shall not be under a duty or obligation in connection with the acquisition or Grant by the Borrower to the Collateral Trustee of any item constituting the Assets, or to evaluate the sufficiency of the documents or instruments delivered to it by or on behalf of the Borrower in connection with its Grant or otherwise, or in that regard to examine any Underlying Document, in each case, in order to determine compliance with applicable requirements of and restrictions on transfer in respect of such Assets.
(w) In the event that the Bank is also acting in the capacity as the Administrative Agent and Collateral of Paying Agent, shall have no liability Registrar, Calculation Agent, Authenticating Agent, Custodian, Securities Intermediary or Collateral Administrator, the rights, protections, benefits, immunities and indemnities afforded to the Loan PartiesAgent pursuant to this Article VII hereof shall also be afforded to the Bank acting in such capacities; provided that such rights, protections, benefits immunities and indemnities shall be in addition to any rights, protections, benefits, immunities and indemnities provided herein, in the Indenture, the Lenders Securities Account Control Agreement or the Collateral Administration Agreement, or any other Person document to which the Bank in connection with such capacity is a party; provided, however that the foregoing shall not be construed to impose upon the Paying Agent, Note Registrar, Authenticating Agent, Custodian, Calculation Agent, Collateral Administrator or Securities Intermediary any tax withholding amounts paid of the duties or withheld pursuant to applicable law arising from standards of care (including, without limitation, any Loan Party’s or duties of a Lender’s failureprudent person, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreementif any) of the Collateral Trustee.
Appears in 1 contract
Samples: Credit Agreement (PennantPark Floating Rate Capital Ltd.)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents (a) The Program Agent shall not deliver to the contraryLock-Box Banks the Notices of Effectiveness attached to the Lock-Box Agreements unless and until a Cash Control Triggering Event shall have occurred. The Seller hereby transfers to the Program Agent the exclusive ownership and control of the Lock-Box Accounts to which the Obligors of Pool Receivables shall make payments and the Cash Collateral Account.
(b) At any time following a Cash Control Triggering Event:
(i) The Program Agent may notify the Obligors of Pool Receivables (with a copy to the Investor Agents), before taking or omitting any action to be taken or omitted by an Agent at the Seller’s expense, of the ownership of Receivable Interests under the terms of this Agreement and direct that all payments be made directly to the other Loan DocumentsProgram Agent or its designee.
(ii) At the Agents’ request and at the Seller’s expense, such the Seller shall notify each Obligor of Pool Receivables (with a copy to the Program Agent may seek the written direction and each Investor Agent) of the Required Lenders ownership of Receivable Interests under this Agreement and direct that payments be made directly to the Program Agent or its designee.
(iii) At the Administrative Program Agent’s request and at the Seller’s expense, the Seller and the Collection Agent shall (which written direction may be A) assemble all of the documents, instruments and other records (including, without limitation, computer tapes and disks) that evidence or relate to the Pool Receivables and the related Contracts and Related Security, or that are otherwise necessary or desirable to collect the Pool Receivables, and shall make the same available to the Program Agent at a place selected by the Program Agent or its designee, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Pool Receivables in a manner acceptable to the Program Agent and, promptly upon receipt, remit all such cash, checks and instruments, duly indorsed or with duly executed instruments of transfer, to the Program Agent or its designee.
(iv) The Seller authorizes the Program Agent to take any and all steps in the form Seller’s name and on behalf of an email)the Seller that are necessary or desirable, in the determination of the Program Agent, to collect amounts due under the Pool Receivables, including, without limitation, endorsing the Seller’s name on checks and other instruments representing Collections of Pool Receivables and enforcing the Pool Receivables and the Related Security and related Contracts. relating to such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders or the Administrative Agent with respect to any act or action (including failure to act) in connection with this Agreement Debt; or any other Loan Document, such Agent event shall be entitled to refrain from such act occur or taking such action unless and until such Agent condition shall have received instructions from the Required Lenders or the Administrative Agent; and such Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, neither any Lender nor any Issuing Lender shall have any right of action whatsoever against such Agent as a result of such Agent acting or refraining from acting hereunder or exist under any other Loan Document in accordance with the instructions of the Required Lenders agreement or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction of the Required Lenders or the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply instrument relating to any such sub- Agent Debt and to shall continue after the Related Parties applicable grace period, if any, specified in such agreement or instrument, if the effect of such Agent and event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such sub- Agent. The Agents Debt shall not be responsible for the action declared to be due and payable, or inaction required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or the supervisiondefeased, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent an offer to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent repay, redeem, purchase or defease such Debt shall be required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwisebe made, in the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating each case prior to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriatestated maturity thereof; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreement.or
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lexmark International Inc /Ky/)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 12.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent 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 such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither any Lender nor any Issuing Lender shall have any right of action whatsoever against such 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 the Required Lenders or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction of the Required Lenders or the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No (a) no Agent shall be required subject to useany fiduciary or other implied duties, risk or advance its own funds or otherwise incur any liabilityregardless of whether a Default has occurred and is continuing, financial or otherwise, in the performance of (b) no Agent (nor any of its duties their officers, partners, directors, employees or the exercise of any of its rights and powers under the Loan Documents. In no event agents) shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner except as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary set forth herein or in the other Loan Credit Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect duty to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documentsdisclose, and shall not be liable to the Lenders for the failure to disclose, any information relating to the Borrower or any Affiliate thereof that is communicated to or obtained by the Person serving as Administrative Agent, Collateral Agent or any of their respective Affiliates in any capacity and (c) no Agent (nor any of their officers, partners, directors, employees or agents) shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such withholding, as Agent is required to comply with applicable law. PNC Bank, National Association, both exercise in its individual capacity and in its capacity as writing by the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Required Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 (or such other documentation contemplated number or percentage of the Lenders as shall be necessary under this Agreementthe circumstances as provided in Section 11.01 or 12.12); provided, that no Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability, if the Agent is not indemnified to its satisfaction, or that is contrary to any Credit Document or applicable Legal Requirements including, for the avoidance of doubt any action that may be in violation of the automatic stay under the Bankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or that may affect a foreclosure, modification or termination of property of a Defaulting Lender under the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect; provided, further, that no Agent shall have any liability for action taken or not taken by it with the consent of or at the request or direction of the Required Lenders.
Appears in 1 contract
Certain Rights of the Agents. Notwithstanding (a) The Agents may conclusively rely and shall be fully protected in acting or refraining from acting upon any provision resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. Without limiting the provisions hereof, the Agents shall be entitled to the rights, benefits, immunities, indemnities and protections of the Collateral Trustee as set forth in Article VI of the Indenture as if such rights, benefits, immunities, indemnities and protections were fully set forth herein; provided that such rights, protections, immunities, indemnities and benefits shall be in addition to any rights, protections and benefits afforded to the Agents under this Agreement; provided, further, that the foregoing shall not be construed to impose upon the Agents any of the duties or standards of care (including, without limitation, any duties of a prudent person) of the Collateral Trustee. Any request or direction of either of the Borrowers mentioned herein may be sufficiently evidenced by an Issuer Order.
(b) Whenever in the administration of this Agreement or the other Loan Documents Indenture the Agents shall (i) deem it desirable that a matter be proved or established prior to the contrarytaking, before taking suffering or omitting any action hereunder, the Agents (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or Issuer Order or (ii) be required to determine the value of any Assets or funds hereunder or the cash flows projected to be received therefrom, the Agents may, in the absence of bad faith on its part, rely on reports of nationally recognized accountants, investment bankers or other Persons qualified to provide the information required to make such determination, including nationally recognized dealers in Assets of the type being valued, securities quotation services, loan pricing services and loan valuation agents.
(c) As a condition to the taking or omitting of any action by it hereunder, the Agents may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by an Agent it hereunder in good faith and in reliance thereon.
(d) The Agents shall be under no obligation to exercise or to honor any of the terms rights or powers vested in it by this Agreement at the request or direction of any Lenders pursuant to this Agreement and the other Indenture, unless such Lenders shall have offered to the Agents security or indemnity reasonably satisfactory to the Agents against the costs, expenses (including reasonable fees and expenses of agents, experts and attorneys) and liabilities which might reasonably be incurred by it in compliance with such request or direction. The Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may shall in all cases be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon acting, or in refraining from acting, under this Agreement or any other Credit Document in accordance with a request or consent of the Majority of the Lenders (or such direction. If any Agent shall request instructions from other percentage of the Required Lenders expressly specified in this Agreement or the Administrative Agent such Credit Document with respect to any act or action (including failure to acta particular matter) given in connection accordance with this Agreement or any other Loan Document, Credit Document and such Agent request and any action taken or failure to act pursuant thereto shall be entitled binding upon all of the Lenders.
(e) The Agents shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper, electronic communication or document, but each Agent, in its discretion, may, and upon the written direction of a Majority of the Controlling Class or of the Rating Agency shall (subject to the right hereunder to be reasonably satisfactorily indemnified for associated expense (including the reasonable fees and expenses of agents and counsel) and liability), make such further inquiry or investigation into such facts or matters as it may see fit or as it shall be directed, and the Agents shall be entitled, on reasonable prior notice to the Borrowers and the Collateral Manager, to examine the books and records relating to the Loans, the Notes and the Assets, personally or by agent or attorney, during the Borrowers’ or the Collateral Manager’s normal business hours; provided that the Agents shall, and shall cause their respective agents to, hold in confidence all such information, except (A) to the extent disclosure may be required by law or by any regulatory, administrative or governmental authority, (B) as otherwise required pursuant to this Agreement or (C) to the extent that the Agent, in its sole discretion, may determine that such disclosure is consistent with its obligations hereunder; provided, further, that each Agent may disclose on a confidential basis any such information to its agents, attorneys and auditors in connection with the performance of its responsibilities hereunder or under the Indenture.
(f) The Agents may execute any of the rights, privileges or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided that neither of the Agents shall be responsible for any misconduct or negligence on the part of any such agent appointed or attorney appointed with due care.
(g) Neither of the Agents shall be liable for any action it takes or omits to take in good faith that it reasonably believes to be authorized or within its rights or powers hereunder, including actions or omissions to act at the direction of the Collateral Manager.
(h) Any permissive rights of the Agents to take or refrain from such act taking actions enumerated in this Agreement or taking such action the Indenture shall not be construed as a duty and the Agents shall not be answerable for other than their respective gross negligence, willful misconduct or bad faith.
(i) Nothing herein shall be construed to impose an obligation on the part of the Agents to monitor, recalculate, evaluate or verify or independently determine the accuracy of any report, certificate or information received from the Borrower or Collateral Manager (unless and until such Agent except to the extent otherwise expressly set forth herein) and all calculations made by the Agents in their respective roles hereunder shall have received instructions from (in the Required Lenders or the Administrative Agent; absence of manifest error) be final and such Agent binding on all parties.
(j) The Agents shall not incur liability to be liable for the actions or omissions of, or any Person by reason of so refraining. Without inaccuracies in the records of, any non-Affiliated custodian, transfer agent, paying agent or calculation agent (other than itself in such capacities), DTC, Euroclear, Clearstream or any other clearing agency or depository, and without limiting the foregoing, neither any Lender nor any Issuing Lender the Agents shall have any right of action whatsoever against such Agent as a result of such Agent acting or refraining from acting hereunder or not be under any other Loan Document in accordance obligation to monitor, evaluate, or verify compliance by the Collateral Manager with the instructions terms hereof or of the Required Lenders Indenture or the Administrative Agent. In Collateral Management Agreement, or to verify or independently determine the absence accuracy of an express statement in information received by the Loan Documents regarding which Lenders shall direct in Agents from the Collateral Manager (or from any circumstanceselling institution, agent bank, trustee or similar source) with respect to the Assets.
(k) To the extent permitted by applicable law, the direction Agents shall not be required to give any bond or surety in respect of the Required Lenders execution of this Agreement or the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform Indenture or otherwise.
(l) In making or disposing of any and all investment permitted by this Agreement or the Indenture, each of the Agents is authorized to deal with itself (in its duties and exercise its rights and powers hereunder individual capacity) or under any other Loan Document by or through with any one or more of its Affiliates, in each case on an arm’s-length basis, whether it or such Affiliate is acting as a sub-Agents appointed by such Agentagent of the Agent or for any third Person or dealing as principal for its own account. Such Agent and If otherwise qualified, obligations of the Bank or any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article Affiliates shall apply to any such sub- Agent and to qualify as Eligible Investments under the Related Parties of such Agent and any such sub- Agent. Indenture.
(m) The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent shall be required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts circumstances beyond its control. Such acts shall include, control (such circumstances include but are not be limited to, to acts of God, strikes, lockouts, riots, acts of warwar and interruptions, epidemics, governmental regulations superimposed after the fact, fire, communication line failureslosses or malfunctions of utilities, computer viruses, power failures, earthquakes, terrorist attacks (hardware or software) or communications services).
(n) No provision of this Agreement or any other Credit Document shall require either of the Agents to expend or risk its own funds or otherwise incur any financial or other disasters. Delivery liability in the performance of reportsany of its duties hereunder, documents or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary incidental services, including mailing of notices under this Agreement.
(o) To the extent any defined term hereunder, or any calculation required to be made or determined by the Agents hereunder, is dependent upon or defined by reference to GAAP, the Agents shall be entitled to request and other information receive (and conclusively rely upon) instruction from the Borrower or the accountants (which may or may not be the Independent Accountants appointed by the Issuer pursuant to an Agent is for informational purposes only Section 10.9 of the Indenture) (and such Agent’s in the absence of its receipt of timely instruction therefrom, shall be entitled to obtain from an Independent accountant at the foregoing expense of the Borrower) as to the application of GAAP in such connection, in any instance.
(p) The Agents or their Affiliates are permitted to receive additional compensation that could be deemed to be in the Agents’ economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Eligible Investments, (ii) using Affiliates to effect transactions in certain Eligible Investments and (iii) effecting transactions in certain Eligible Investments. Such compensation is not payable or reimbursable under the Indenture or this Agreement.
(q) The Agents shall not constitute constructive be deemed to have notice or knowledge of any event matter unless a Responsible Officer has actual knowledge thereof or circumstance unless written notice thereof is received by a Responsible Officer at the Corporate Trust Office and such notice references the Loans generally, the Borrower or this Agreement. Whenever reference is made in this Agreement to a Default or an Event of Default such reference shall, insofar as determining any liability on the part of the Agents is concerned, be construed to refer only to a Default or an Event of Default of which the applicable Agent is deemed to have knowledge in accordance with this paragraph.
(r) Neither Agent shall have any liability for the acts or omissions of the Collateral Manager, the Collateral Administrator, the Borrower or the Co-Borrower, any Paying Agent (if such Person is not an Agent) or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Authenticating Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall Person is not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing froman Agent) any action appointed under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral other Credit Documents.
(s) No Agent shall be liable for any losserror of judgment made in good faith by an Agent, including without limitation unless it shall be proven that such Agent was grossly negligent in ascertaining the pertinent facts.
(t) The Agents shall not be liable with respect to any loss action taken or omitted to be taken by it in good faith in accordance with the direction of principal the Borrower, the Co-Borrower, the Lenders or interestthe Collateral Manager.
(u) To help fight the funding of terrorism and money laundering activities, the Agents shall obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Agents. The Agents shall ask for the name, address, tax identification number and other information that shall allow the Agents to identify the individual or entity who is establishing the relationship or opening the account. The Agents may also ask for formation documents such as articles of incorporation, an offering memorandum or other identifying documents to be provided.
(v) Notwithstanding any breakage fees term hereof (or penalties any term of the UCC that might otherwise be construed to be applicable to a “securities intermediary” as defined in the UCC) to the contrary, the Loan Agent shall not be under a duty or obligation in connection with the purchase acquisition or liquidation Grant by the Borrower to the Collateral Trustee of any investment made in accordance with item constituting the terms Assets, or to evaluate the sufficiency of the Loan Documents. Notwithstanding anything else documents or instruments delivered to the contrary herein it by or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction on behalf of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person Borrower in connection with its Grant or otherwise, or in that regard to examine any tax withholding amounts paid or withheld pursuant Underlying Instrument, in each case, in order to determine compliance with applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct requirements of and complete IRS Form W-9, an appropriate IRS Form W-8 or restrictions on transfer in respect of such other documentation contemplated under this AgreementAssets.
Appears in 1 contract
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 13.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent 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 such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders or as shall be necessary under the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervisioncircumstances as provided in Section 12.01 or13.12); provided, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to liability, financial or otherwise, in if the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating is not indemnified to its performance of its duties under this Agreement satisfaction, or that is contrary to any other Loan Credit Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (applicable Legal Requirements including, but not limited to, orders for the avoidance of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) doubt any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it in violation of the automatic stay under the terms Bankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of such creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other agreement applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or agreements). Prior to any paymentthat may affect a foreclosure, distribution modification or transfer termination of funds by an Agent to any Person property of a Defaulting Lender under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or informationBankruptcy Code, and so long as such documentation or information remain accurate and true). The Agents shall have no dutyall other liquidation, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Personconservatorship, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent maybankruptcy, in its discretionassignment for the benefit of creditors, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investmentmoratorium, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any lossrearrangement, including without limitation any loss of principal or interestreceivership, insolvency, reorganization, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms similar debtor relief laws of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request United States or other communication from, or other direction given or action applicable jurisdictions from time to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected time in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrenceeffect. The Administrative Agent does not warrant or accept responsibility for, and shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent not have any duty, obligation or liability with respect to (a) the withholding laws continuation, administration, submission, or requirements calculation of or any other matter related to the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other country)Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Benchmark Conforming Changes. The Administrative Agent shall have and its affiliates or other related entities may engage in transactions that affect the right calculation of the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to withhold amounts from the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, or any payments under other Benchmark, in each case pursuant to the Loan Documentsterms of this Agreement, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan PartiesBorrower, the Lenders any Lender or any other Person person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in connection with tort, contract or otherwise and whether at law or in equity), for any tax withholding amounts paid error or withheld pursuant to applicable law arising from calculation of any Loan Party’s such rate (or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 component thereof) provided by any such information source or such other documentation contemplated under this Agreementservice.
Appears in 1 contract
Samples: Abl Credit Agreement (J.Jill, Inc.)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 13.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent 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 such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders or as shall be necessary under the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervisioncircumstances as provided in Section 12.01 or13.12); provided, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to liability, financial if the Agent is not indemnified to its satisfaction, or otherwisethat is contrary to any Credit Document or applicable Legal Requirements including, for the avoidance of doubt any action that may be in violation of the performance of any of its duties or the exercise of any of its rights and powers automatic stay under the Loan DocumentsBankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or that may affect a foreclosure, modification or termination of property of a Defaulting Lender under the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect. In no event The Administrative Agent does not warrant or accept responsibility for, and shall not have any Agent be liable for any consequentialliability with respect to (a) the continuation, indirectadministration of, punitive submission of, or special loss or damage calculation of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective matter related to the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referencedreferred to in the definition thereof, or any alternative, comparable or successor or replacement rate thereto (including any then-current Benchmark or any Benchmark Replacement), including whether the composition or characteristics of whether any such Agent has been advised of the likelihood of such loss alternative, comparable or damage and regardless of the form of action. In no event shall successor or replacement rate (including any Agent Benchmark Replacement) will be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited similar to, acts of Godor produce the same value or economic equivalence of, strikesor have the same volume or liquidity as, lockoutsthe Base Rate, riotsthe Term SOFR Reference Rate, acts of warAdjusted Term SOFR, epidemicsTerm SOFR or any other Benchmark Replacementprior to its discontinuance or unavailability, governmental regulations superimposed after or (b) the facteffect, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks implementation or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge composition of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process Benchmark Replacement Conforming Changes (including, but not limited to, orders of attachment determining whether any Benchmark Replacement Conforming Changes, if any, are necessary or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other countryadvisable). The Administrative Agent shall be under no duty or obligation (i) to monitor, determine or verify the availability, cessation or replacement of any Benchmark, or the occurrence of any Benchmark Transition Event or Benchmark Replacement Date, or (ii) to identify, determine or select any Benchmark Replacement, any Benchmark Replacement Adjustment, or other replacement benchmark or any replacement or successor index and its affiliates or other related entities may engage in transactions that affect the calculation of the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent shall not have any liability for any interest rate published on any publicly available source (including but not limited to the right Federal Reserve Bank of New York's Website), by any publication or other source for determining any interest rates applicable to withhold amounts from any payments under Loan, including, without limitation, any inaccuracy or error relating to the Loan Documents, and publication of any such interest rates. The Administrative Agent shall not be liable for such withholdingany delay or failure in performing its duties under this Agreement directly or indirectly as a result of the unavailability of any Benchmark or the absence of a designated replacement Benchmark, including as required a result of any delay or error on the part of any other Person, or whether as a result of any other Person providing or failing to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as provide the Administrative Agent with any information or directionmay select information sources or services in its reasonable discretion to ascertain the Base Rate, the Term OSFR Reference Rate, Adjusted Term SOFR. Term SOFR, or any other Bencharmk, in each case pursuant to the terms of this Agreement or any Credit Document other than, in each case, to the extent of the Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and Collateral Agentnon-appealable decision. Nothing in this Section shall constitute a representation or warranty by Parent, the Company or any of their Subsidiaries nor can it constitute the basis of any Default or Event of Default.. and shall have no liability to the Loan PartiesBorrower, the Lenders any Lender or any other Person person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in connection with tort, contract or otherwise and whether at law or in equity), for any tax withholding amounts paid error or withheld pursuant to applicable law arising from calculation of any Loan Party’s such rate (or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 component thereof) provided by any such information source or such other documentation contemplated under this Agreementservice.
Appears in 1 contract
Samples: Abl Credit Agreement (J.Jill, Inc.)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or (a) If the Administrative Agent (which written direction may be in the form of an email)Agent, and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any or either Collateral Agent shall request instructions from the Required Tranche A Lenders, Required Tranche A Revolving Lenders, Required Tranche B Lenders or and/or Supermajority Lenders, as the Administrative Agent case may be, with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Transaction Document, then the Administrative Agent and such Collateral Agent, respectively, shall be entitled to refrain from such act or taking such action unless and until it shall have received instructions from such Lenders, and, in any such event, neither the Administrative Agent nor the Collateral Agents shall incur liability to any Person by reason of so refraining. Without limiting the generality of the foregoing, no Lender or the holder of any Note shall have any right of action whatsoever against the Administrative Agent or either Collateral Agent as a result of acting or refraining from acting hereunder or under any other Transaction Document in accordance with the instructions of the Required Tranche A Lenders, Required Tranche A Revolving Lenders, Required Tranche B Lenders and/or Supermajority Lenders, as the case may be.
(b) If either Collateral Agent shall request instructions from the Tranche A Lenders with respect to any action (including failure to act) in connection with this Agreement or any other Transaction Document, then such Collateral Agent shall be entitled to refrain from such act or taking such action unless and until such Agent it shall have received instructions from the Required Lenders or the Administrative Agent; Tranche A Lenders, and in any such event, such Collateral Agent shall not incur liability to any Person by reason of so refraining. Without limiting the generality of the foregoing, neither no Lender or the holder of any Lender nor any Issuing Lender Note shall have any right of action whatsoever against such Agent the Collateral Agents as a result of such Agent acting or refraining from acting hereunder or under any other Loan Transaction Document in accordance with the instructions of the Required Lenders or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction of the Required Lenders or the Administrative Agent shall apply and be sufficient for all purposes. 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Tranche A Lenders. No Agent shall be required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Vitro Sa De Cv)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents (a) The Program Agent shall not deliver to the contraryLock-Box Banks the Notices of Effectiveness attached to the Lock-Box Agreements unless and until a Cash Control Triggering Event shall have occurred. The Seller hereby transfers to the Program Agent the exclusive ownership and control of the Lock-Box Accounts to which the Obligors of Pool Receivables shall make payments and the Cash Collateral Account.
(b) At any time following a Cash Control Triggering Event:
(i) The Program Agent may notify the Obligors of Pool Receivables (with a copy to the Investor Agents), before taking or omitting any action to be taken or omitted by an Agent at the Seller's expense, of the ownership of Receivable Interests under the terms of this Agreement and direct that all payments be made directly to the other Loan DocumentsProgram Agent or its designee.
(ii) At the Agents' request and at the Seller's expense, such the Seller shall notify each Obligor of Pool Receivables (with a copy to the Program Agent may seek the written direction and each Investor Agent) of the Required Lenders ownership of Receivable Interests under this Agreement and direct that payments be made directly to the Program Agent or its designee.
(iii) At the Administrative Program Agent's request and at the Seller's expense, the Seller and the Collection Agent shall (which written direction may be in A) assemble all of the form of an email)documents, instruments and other records (including, without limitation, computer tapes and disks) that evidence or relate to the Pool Receivables and the related Contracts and Related Security, or that are otherwise necessary or desirable to collect the Pool Receivables, and shall make the same available to the Program Agent at a place selected by the Program Agent or its designee, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Pool Receivables in a manner acceptable to the Program Agent and, promptly upon receipt, remit all such cash, checks and instruments, duly indorsed or with duly executed instruments of transfer, to the Program Agent is entitled or its designee.
(iv) The Seller authorizes the Program Agent to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders or the Administrative Agent with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Document, such Agent 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 the Administrative Agent; and such Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, neither any Lender nor any Issuing Lender shall have any right of action whatsoever against such 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 the Required Lenders or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction of the Required Lenders or the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform take any and all of its duties steps in the Seller's name and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-Agents appointed by such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent shall be required to use, risk Seller that are necessary or advance its own funds or otherwise incur any liability, financial or otherwisedesirable, in the performance determination of any of its duties or the exercise of any of its rights and powers Program Agent, to collect amounts due under the Loan Documents. In no event shall any Agent be liable for any consequentialPool Receivables, indirectincluding, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of without limitation, endorsing the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents Seller's name on checks and other information to an Agent is for informational purposes only instruments representing Collections of Pool Receivables and such Agent’s receipt of enforcing the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent Pool Receivables and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; Related Security and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreementrelated Contracts.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lexmark International Inc /Ky/)
