The Administrative Agent and the Syndication Agent. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Syndication Agent as its agent and authorizes the Syndication Agent to take such actions on its behalf, and to exercise such powers as are delegated to the Syndication Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article VIII are solely for the benefit of the Administrative Agent, the Syndication Agent and the Issuing Banks, and no Borrower shall have rights as a third party beneficiary of such provisions. Each of the banks serving as the Administrative Agent and the Syndication Agent hereunder shall have the same rights and powers in their respective capacities as Lenders as any other Lender and may exercise the same as though it were not the Administrative Agent or the Syndication Agent, respectively, and each such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent or Syndication Agent hereunder without any duty to account therefor to the Lenders. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Neither the Administrative Agent nor the Syndication Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither the Administrative Agent nor the Syndication Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, (b) neither the Administrative Agent nor the Syndication Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers of the Administrative Agent expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), provided that neither the Syndication Agent nor the Administrative Agent shall be required to take any action that, in their respective opinions or the opinions of their counsel, may expose the Administrative Agent or the Syndication Agent, as applicable, to liability or that is contrary to the Loan Documents or applicable law, and (c) except as expressly set forth in the Loan Documents, neither the Administrative Agent nor the Syndication Agent shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or Syndication Agent, as applicable, or any of their respective Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02). Neither the Administrative Agent nor the Syndication Agent shall be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct. The Administrative Agent and the Syndication Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent or the Syndication Agent by the Company or a Lender, or an Issuing Bank, and neither the Administrative Agent nor the Syndication Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) except to the extent of each of their respective obligations, the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or the Syndication Agent, as applicable. Each of the Administrative Agent and the Syndication Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Administrative Agent and the Syndication Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. Each of the Administrative Agent and the Syndication Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Administrative Agent and the Syndication Agent may perform any and all its respective duties and exercise its respective rights and powers by or through any one or more sub-agents appointed by the Administrative Agent or the Syndication Agent, as applicable. Each of the Administrative Agent and the Syndication Agent and any such respective sub-agent may perform any and all its respective duties and exercise its respective rights and powers through its respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent, the Syndication Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent and Syndication Agent, respectively. The Administrative Agent may at any time resign by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with and subject to the approval of the Company (so long as no Event of Default has occurred and is continuing), to appoint a successor from among the Lenders (such approval of the Required Lenders and the Company not to be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, with a combined capital and surplus of at least $1,000,000,000; provided that if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the Loan Documents and (ii) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for in this Article VIII. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder (if not already discharged therefrom as provided above in this Section). The fees payable by any Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between such Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. If PNC resigns as Administrative Agent under this Section 9.03, PNC shall also resign as an Issuing Bank. Upon the appointment of a successor Administrative Agent hereunder, such successor shall (i) succeed to all of the rights, powers, privileges and duties of PNC as the retiring Issuing Bank and Administrative Agent and PNC shall be discharged from all of its respective duties and obligations as Issuing Bank and Administrative Agent under the Loan Documents, and (ii) issue letters of credit in substitution for the Letters of Credit issued by PNC, if any, outstanding at the time of such succession or make other arrangement satisfactory to PNC to effectively assume the obligations of PNC with respect to such Letters of Credit. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, the Syndication Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Syndication Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the Lenders, if any, identified in this Agreement as a Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Co-Documentation Agents as it makes with respect to the Administrative Agent and the Syndication Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Worthington Industries Inc), Credit Agreement (Worthington Industries Inc)
The Administrative Agent and the Syndication Agent. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Syndication Agent as its agent and authorizes the Syndication Agent to take such actions on its behalf, and to exercise such powers as are delegated to the Syndication Agent by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article VIII are solely for the benefit of the Administrative Agent, the Syndication Agent and the Issuing Banks, and no Borrower shall have rights as a third party beneficiary of such provisions. Each of the banks bank serving as the Administrative Agent and the bank serving as Syndication Agent hereunder shall have the same rights and powers in their respective capacities as Lenders as any other Lender and may exercise the same as though it were not the Administrative Agent or the Syndication Agent, respectively, and each such bank banks and its their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Company the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent or Syndication Agent hereunder without any duty to account therefor to the Lenders. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Neither the Administrative Agent nor the Syndication Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. None of the Syndication Agent or the Lead Arrangers shall have any duties or responsibilities hereunder in the Loan Documentstheir respective capacities as such. Without limiting the generality of the foregoing, (a) neither the Administrative Agent nor the Syndication Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, (b) neither the Administrative Agent nor the Syndication Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers of the Administrative Agent expressly contemplated by the Loan Documents hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), provided that neither the Syndication Agent nor the Administrative Agent shall be required to take any action that, in their respective opinions or the opinions of their counsel, may expose the Administrative Agent or the Syndication Agent, as applicable, to liability or that is contrary to the Loan Documents or applicable law, and (c) except as expressly set forth in the Loan Documentsherein, neither the Administrative Agent nor the Syndication Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or Syndication Agent, as applicable, or any of their respective its Affiliates in any capacity. The Administrative Agent and the Syndication Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02). Neither the Administrative Agent nor the Syndication Agent shall be liable for any action taken ) or not taken by it in the absence of its own gross negligence or willful misconduct. The Administrative Agent and the Syndication Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent or the Syndication Agent by the Company Borrower or a Lender, or an Issuing Bank, and neither the Administrative Agent nor and the Syndication Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) except to the extent of each of their respective obligations, the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default or Event of Defaultherein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement, or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or the Syndication Agent, as applicable. Each of the The Administrative Agent and the Syndication Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. Each of the The Administrative Agent and the Syndication Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the The Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. Each of the Administrative Agent and the Syndication Agent may consult with legal counsel (who may be counsel for the CompanyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the The Administrative Agent and the Syndication Agent may perform any and all its respective duties and exercise its respective rights and powers by or through any one or more sub-agents appointed by the Administrative Agent or the Syndication Agent, as applicable. Each of the The Administrative Agent and the Syndication Agent and any such respective sub-agent may perform any and all its respective duties and exercise its respective rights and powers through its their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent, the Syndication Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as the activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent and Syndication Agentas provided in this paragraph, respectively. The the Administrative Agent may resign at any time resign by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation right (with and subject to the approval consent of the Company (so long as no Event of Default has occurred and is continuing)Borrower, to appoint a successor from among the Lenders (such approval of the Required Lenders and the Company which consent shall not to be unreasonably withheld or delayed)delayed and shall not be required if any Event of Default shall be continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, with a combined capital and surplus or an Affiliate of at least $1,000,000,000; provided that if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted any such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the Loan Documents and (ii) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for in this Article VIIIbank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder (if not already discharged therefrom as provided above in this Section)hereunder. The fees payable by any the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between such the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. If PNC resigns as Administrative Agent under this Section 9.03, PNC shall also resign as an Issuing Bank. Upon the appointment of a successor Administrative Agent hereunder, such successor shall (i) succeed to all of the rights, powers, privileges and duties of PNC as the retiring Issuing Bank and Administrative Agent and PNC shall be discharged from all of its respective duties and obligations as Issuing Bank and Administrative Agent under the Loan Documents, and (ii) issue letters of credit in substitution for the Letters of Credit issued by PNC, if any, outstanding at the time of such succession or make other arrangement satisfactory to PNC to effectively assume the obligations of PNC with respect to such Letters of Credit. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, the Syndication Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Syndication Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None Each Lender (x) represents and warrants, as of the Lendersdate such Person became a Lender party hereto, if anyto, identified and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and each Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower, that at least one of the following is and will be true:
(a) such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans,
(b) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to, and all of the conditions of which are and will continue to be satisfied in connection with, such Lender’s entrance into, participation in, administration of and performance of the Loans and this Agreement,
(c) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans and this Agreement, or
(d) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender. In addition, unless clause (a) above is true with respect to a Co-Documentation Lender or such Lender has not provided another representation, warranty and covenant as provided in clause (d) above, such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent shall have and each Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of any rightBorrower, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, that:
(a) none of such Lenders shall have the Administrative Agent or be deemed to have any Lead Arranger or any of their respective Affiliates is a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders assets of such Lender (including in their respective capacities as Co-Documentation Agents as it makes connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement or any documents related to hereto or thereto),
(b) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),
(c) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations of the Credit Parties under the Credit Documents),
(d) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and
(e) no fee or other compensation is being paid directly to the Administrative Agent and or either Lead Arranger or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Syndication Agent in the preceding paragraph. The Lenders are not partners Loans or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lenderthis Agreement. The Administrative Agent and each Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans and this Agreement, (ii) may recognize a gain if it extended the Loans for an amount less than the amount being paid for an interest in the Loans by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing. As used in this Article VIII, the following terms shall have the exclusive right on behalf following meanings (such meanings to be equally applicable to both the singular and plural forms of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.defined):
Appears in 1 contract
The Administrative Agent and the Syndication Agent. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Syndication Agent as its agent and authorizes the Syndication Agent to take such actions on its behalf, and to exercise such powers as are delegated to the Syndication Agent by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article VIII are solely for the benefit of the Administrative Agent, the Syndication Agent and the Issuing Banks, and no Borrower shall have rights as a third party beneficiary of such provisions. Each of the banks bank serving as the Administrative Agent and the Syndication Agent hereunder shall have the same rights and powers in their respective capacities its capacity as Lenders a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent or the Syndication Agent, respectively, and each such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Company the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent or Syndication Agent hereunder without any duty to account therefor to the Lendershereunder. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Neither the The Administrative Agent nor the Syndication Agent shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, (a) neither the Administrative Agent nor the Syndication Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, (b) neither the Administrative Agent nor the Syndication Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers of the Administrative Agent expressly contemplated by the Loan Documents hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.029.2), provided that neither the Syndication Agent nor the Administrative Agent shall be required to take any action that, in their respective opinions or the opinions of their counsel, may expose the Administrative Agent or the Syndication Agent, as applicable, to liability or that is contrary to the Loan Documents or applicable law, and (c) except as expressly set forth in the Loan Documentsherein, neither the Administrative Agent nor the Syndication Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or Syndication Agent, as applicable, or any of their respective its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02). Neither the Administrative Agent nor the Syndication Agent shall be liable for any action taken 9.2) or not taken by it in the absence of its own gross negligence or willful misconduct. The Administrative Agent and the Syndication Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent or the Syndication Agent by the Company Borrower or a Lender, or an Issuing Bank, and neither the Administrative Agent nor the Syndication Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) except to the extent of each of their respective obligations, the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default or Event of Defaultherein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentdocument, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or the Syndication Agent, as applicable. Each of the Administrative Agent and the Syndication Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Administrative Agent and the Syndication Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. Each of the Administrative Agent and the Syndication Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Administrative Agent and the Syndication Agent may perform any and all its respective duties and exercise its respective rights and powers by or through any one or more sub-agents appointed by the Administrative Agent or the Syndication Agent, as applicable. Each of the Administrative Agent and the Syndication Agent and any such respective sub-agent may perform any and all its respective duties and exercise its respective rights and powers through its respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent, the Syndication Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent and Syndication Agent, respectively. The Administrative Agent may at any time resign by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with and subject to the approval of the Company (so long as no Event of Default has occurred and is continuing), to appoint a successor from among the Lenders (such approval of the Required Lenders and the Company not to be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, with a combined capital and surplus of at least $1,000,000,000; provided that if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the Loan Documents and (ii) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for in this Article VIII. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder (if not already discharged therefrom as provided above in this Section). The fees payable by any Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between such Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. If PNC resigns as Administrative Agent under this Section 9.03, PNC shall also resign as an Issuing Bank. Upon the appointment of a successor Administrative Agent hereunder, such successor shall (i) succeed to all of the rights, powers, privileges and duties of PNC as the retiring Issuing Bank and Administrative Agent and PNC shall be discharged from all of its respective duties and obligations as Issuing Bank and Administrative Agent under the Loan Documents, and (ii) issue letters of credit in substitution for the Letters of Credit issued by PNC, if any, outstanding at the time of such succession or make other arrangement satisfactory to PNC to effectively assume the obligations of PNC with respect to such Letters of Credit. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, the Syndication Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Syndication Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the Lenders, if any, identified in this Agreement as a Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Co-Documentation Agents as it makes with respect to the Administrative Agent and the Syndication Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.or
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The Administrative Agent and the Syndication Agent. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Syndication Agent as its agent and authorizes the Syndication Agent to take such actions on its behalf, and to exercise such powers as are delegated to the Syndication Agent by the terms of the Loan Documentshereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article VIII are solely for the benefit of the Administrative Agent, the Syndication Agent and the Issuing Banks, and no Borrower shall have rights as a third party beneficiary of such provisions. Each of the banks bank serving as the Administrative Agent and the Syndication Agent hereunder shall have the same rights and powers in their respective capacities its capacity as Lenders a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent or the Syndication Agent, respectively, and each such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Company the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent or Syndication Agent hereunder without any duty to account therefor to the Lendershereunder. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Neither the The Administrative Agent nor the Syndication Agent shall not have any duties or obligations except those expressly set forth in the Loan Documentsherein. Without limiting the generality of the foregoing, (a) neither the Administrative Agent nor the Syndication Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, (b) neither the Administrative Agent nor the Syndication Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers of the Administrative Agent expressly contemplated by the Loan Documents hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.029.2), provided that neither the Syndication Agent nor the Administrative Agent shall be required to take any action that, in their respective opinions or the opinions of their counsel, may expose the Administrative Agent or the Syndication Agent, as applicable, to liability or that is contrary to the Loan Documents or applicable law, and (c) except as expressly set forth in the Loan Documentsherein, neither the Administrative Agent nor the Syndication Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or Syndication Agent, as applicable, or any of their respective its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02). Neither the Administrative Agent nor the Syndication Agent shall be liable for any action taken 9.2) or not taken by it in the absence of its own gross negligence or willful misconduct. The Administrative Agent and the Syndication Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent or the Syndication Agent by the Company Borrower or a Lender, or an Issuing Bank, and neither the Administrative Agent nor the Syndication Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Documentherewith, (iii) except to the extent of each of their respective obligations, the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default or Event of Defaultherein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other agreement, instrument or document document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Documentherein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or the Syndication Agent, as applicable. Each of the The Administrative Agent and the Syndication Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. Each of the The Administrative Agent and the Syndication Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the The Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. Each of the Administrative Agent and the Syndication Agent may consult with legal counsel (who may be counsel for the CompanyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the The Administrative Agent and the Syndication Agent may perform any and all its respective duties and exercise its respective rights and powers by or through any one or more sub-agents appointed by the Administrative Agent or the Syndication Agent, as applicable. Each of the The Administrative Agent and the Syndication Agent and any such respective sub-agent may perform any and all its respective duties and exercise its respective rights and powers through its their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent, the Syndication Agent Agent, the Arrangers and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent and Syndication Agentas provided in this paragraph, respectively. The the Administrative Agent may resign at any time resign by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with and subject to the approval of the Company (so long as no Event of Default has occurred and is continuing)Borrower, to appoint a successor from among the Lenders (such approval of the Required Lenders and the Company not to be unreasonably withheld or delayed)successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing BanksBank, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, with a combined capital and surplus or an Affiliate of at least $1,000,000,000; provided that if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted any such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the Loan Documents and (ii) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for in this Article VIIIbank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder (if not already discharged therefrom as provided above in this Section)hereunder. The fees payable by any the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between such the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 9.3 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. If PNC resigns as Administrative The Syndication Agent shall have no right, power, obligation, liability, responsibility or duty under this Section 9.03, PNC shall also resign as an Issuing Bank. Upon the appointment of a successor Administrative Agent hereunder, such successor shall (i) succeed Agreement other than those applicable to all of Lenders as such. Without limiting the rightsforegoing, powers, privileges and duties of PNC as the retiring Issuing Bank and Administrative Syndication Agent and PNC shall not have or be discharged from all of its respective duties and obligations as Issuing Bank and Administrative Agent under the Loan Documents, and (ii) issue letters of credit in substitution for the Letters of Credit issued by PNC, if any, outstanding at the time of such succession or make other arrangement satisfactory deemed to PNC to effectively assume the obligations of PNC have a fiduciary relationship with respect to such Letters of Creditany Lender. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, the Syndication Agent Agent, any Arranger or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Syndication Agent Agent, any Arranger or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the Lenders, if any, identified in this Agreement as a Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Co-Documentation Agents as it makes with respect to the Administrative Agent and the Syndication Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.
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