The Administrative Agent. Each of the Lender Parties hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of the Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower Representative or a Lender Party, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality, validity, enforceability, effectiveness, adequacy or genuineness of any Loan Document or any other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; or (vii) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication believed by it to be genuine and correct, and to have been authorized, signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made or authorized by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Company (if such successor is not a Lender). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company. 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, obligations and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 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. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

Appears in 3 contracts

Samples: Credit Agreement (Kaiser Aluminum Corp), Credit Agreement (Kaiser Aluminum Corp), Credit Agreement (Kaiser Aluminum Corp)

Appears in 3 contracts

Samples: Credit Agreement (Spartan Motors Inc), Credit Agreement (Spartan Motors Inc), Credit Agreement (Spartan Motors Inc)

The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, JPMorgan is hereby appointed to act as Administrative Agent on behalf of the Lenders and the Issuing Banks. Each of the ~~Lender Parties~~ Lenders and the Issuing Banks hereby irrevocably ~~appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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. The ~~bank serving as the~~ Administrative Agent ~~hereunder~~ shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and ~~such bank and~~ its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ any Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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~~10.02); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower or any ~~of the Subsidiaries~~ Subsidiary that is communicated to or obtained by the ~~bank serving as~~ Administrative Agent or any of 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~~10.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~the~~ a Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection ~~with~~ any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~with any Loan Document;~~ herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrowers~~any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit ~~facilities~~ facility provided for herein as well as activities as ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Company. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Company, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may,~~ may on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, ~~privileges, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Company and such successor. After ~~the~~ an Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 10.03 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

Appears in 3 contracts

Samples: Credit Agreement (Newmont Mining Corp /De/), Credit Agreement (Newmont Mining Corp /De/), Credit Agreement (Newmont Mining Corp /De/)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Loan Parties or any Subsidiary of ~~the Subsidiaries~~ a Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any ~~Borrower~~ Loan Party or any of ~~the Subsidiaries~~ its subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower Representative or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; , or (~~vii~~vi) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrowers, to appoint a successor ~~with the consent of the Company (if such successor~~ that is ~~not a Lender)~~an Eligible Successor Agent. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, in consultation with the Borrower Representative, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative Agent which is an Eligible Successor Agent, ~~which shall be~~ until such time, if any, as the Required Lenders appoint a ~~commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company~~Successor Administrative Agent. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, ~~Sections~~ Section 2.17(d) 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. The Loan Parties acknowledge and agree that the Administrative Agent may prepare and distribute to the Lenders Reports containing information obtained by the Administrative Agent through the conduct of appraisals and field examinations pursuant to Sections 5.12 and 5.13 and the exercise of its inspection rights under Section 5.09. Each Lender ~~Party~~ hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the ~~Borrowers~~ Loan Parties and will rely significantly upon the ~~Borrowers~~Loan Parties’ books and records, as well as on representations of the ~~Borrowers~~Loan Parties’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, ~~and it will~~ not share the Report with any ~~Borrower~~ Loan Party or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent shall not have any rights, powers, obligations, liabilities, responsibilities or duties under this Agreement other than those applicable to all Lenders as such.

Appears in 3 contracts

Samples: Credit Agreement (Ascena Retail Group, Inc.), Credit Agreement (Dress Barn Inc), Credit Agreement (Dress Barn Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Company or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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~~10.02); , and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Borrower~~ the Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of 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~~10.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative~~ Company or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document;~~ herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein or therein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrowers~~a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~sub-~~sub agents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-~~sub agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~sub-~~sub agent and to the Related Parties of the Administrative Agent and any such ~~sub-~~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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Lenders and the ~~Borrower Representative~~Company. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Company, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial bank~~ Lender with an office in New York, New York or an Affiliate of ~~any such commercial bank, which shall be reasonably satisfactory to the Company~~a Lender. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Company and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 10.03 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as Notwithstanding anything herein to the ~~completeness or accuracy~~ contrary, the Sole Bookrunner, the Sole Lead Arranger, the Syndication Agents and the Documentation Agent named on the cover page of ~~any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii)~~ this Agreement shall not ~~be liable for~~ have any ~~information contained in any Report; (c) the Reports are not comprehensive audits~~ duties or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in liabilities under this Agreement, ~~it will pay and protect~~except in their capacity, ~~and indemnify~~if any, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as ~~the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender~~Lenders.

Appears in 2 contracts

Samples: Credit Agreement (1 800 Flowers Com Inc), Credit Agreement (1 800 Flowers Com Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the ~~other~~ Loan Documents 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. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and the Borrowers shall not have rights as third party beneficiaries of any of such provisions. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Loan Parties or any Subsidiary of ~~the Subsidiaries~~ a Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary or believed by the Administrative Agent in good faith to be necessary under the circumstances as provided in Section 9.02); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any ~~Borrower or any of the Subsidiaries~~ Loan Party that is communicated to or obtained by the bank serving as Administrative Agent or any of 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~~9.02 or believed by the Administrative Agent in good faith to be necessary) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative~~ Company or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document;~~ Document or the occurrence of any Default, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, effectiveness, ~~adequacy~~ genuineness or ~~genuineness~~ accuracy of any Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or ~~communication~~ intranet website posting or other distribution) believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Loan Parties), 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, other than to the extent a court of competent jurisdiction determines by final and nonappealable judgment liability to have resulted from the gross negligence or wilful misconduct of the Administrative Agent. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative 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. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative ~~Agent~~Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~by notifying~~ upon notice to the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower Representative~~Company. Upon any such resignation, the Required Lenders shall have the ~~right to appoint a successor~~ right, with the consent of the Company (if such ~~successor is~~ consent not to be unreasonably withheld or delayed) in the absence of a ~~Lender)~~continuing Event of Default, to appoint a successor. If no successor shall have been so appointed by the Company and the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders, appoint a successor Administrative ~~Agent, which~~ Agent that shall be a commercial bank with an office in New York, New York, or an Affiliate of any such commercial bank, ~~which shall be reasonably satisfactory~~ in either case acceptable to the ~~Company~~Company in the absence of a continuing Event of Default (such acceptance not to be unreasonably withheld or delayed). 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, obligations and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from all its duties and obligations ~~hereunder~~under the Loan Documents. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed in writing between the ~~Borrowers~~ Company and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-agents~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or any of their Related Parties 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or any of their Related Parties 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. ~~Each~~ Notwithstanding anything herein to the contrary, (i) neither the Arrangers nor any Person named on the cover page of this Agreement as a Syndication Agent or a Documentation Agent shall have any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or an Issuing Lender), but all such Persons shall have the benefit of the indemnities provided for hereunder, and (ii) each Loan Party agrees not to make, and hereby ~~agrees that (a) it has requested a copy of each Report prepared by or~~ waives, any claims based on ~~behalf~~ any alleged fiduciary duty on the part of the Administrative ~~Agent; (b) the Administrative~~ Agent ~~(i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report~~ or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying LenderArrangers.

Appears in 2 contracts

Samples: Credit Agreement (Tyson Foods Inc), Credit Agreement (Tyson Foods Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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. ~~The~~ Any bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the ~~Borrowers~~ Company or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 9.02~~the Loan Documents); , provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Borrower~~ the Company or any ~~of the Subsidiaries~~ Subsidiary that is communicated to or obtained by ~~the~~ any bank serving as Administrative Agent or any of 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~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 9.02~~the Loan Documents) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative or~~ Company, a Lender ~~Party~~or an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~with any Loan Document;~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~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. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized~~signed, ~~signed~~ sent or ~~sent~~ otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~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. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the ~~appointment and acceptance~~ terms of ~~a successor Administrative Agent as provided in~~ this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Company, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a ~~commercial bank~~ Lender with an office in the United States of America, having a combined capital and surplus of at least $500,000,000, or an Affiliate of any such ~~commercial bank, which shall be reasonably satisfactory to the Company~~Lender. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the ~~Borrowers~~ Company to a the successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Company and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article~~Article and Section 10.02, ~~Sections 2.17(d)~~ as well as any exculpatory, reimbursement and ~~9.03~~ indemnification provisions set forth in any other Loan Document, 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~~Agent or as sub-agent, as the case may be. Each Lender ~~Party~~ and Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender ~~Party~~ and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption or an Accession Agreement pursuant to which it shall become a Lender ~~Party hereby agrees that (a) it has requested a copy of~~ hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each ~~Report prepared~~ Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Lender or Issuing Bank shall have any right individually to enforce any guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the ~~Administrative Agent; (b)~~ Lenders and the ~~Administrative Agent (i) makes no representation or warranty~~Issuing Bank in accordance with the terms thereof. Each Lender and each Issuing Bank will be deemed, ~~express or implied~~by its acceptance of the benefits of the guarantees of the Obligations provided under the Loan Documents, as to have agreed to the ~~completeness or accuracy of any Report or any of~~ foregoing provisions. Notwithstanding anything herein to the ~~information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c)~~ contrary, neither the ~~Reports are not comprehensive audits or examinations, and that~~ Lead Arrangers nor any Person ~~performing~~ named on the cover page of this Agreement as a Syndication Agent, a Documentation Agent or a Joint Bookrunner shall have any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct duties or ~~supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower~~ obligations under this Agreement or any other ~~Person~~ Loan Document (except in its capacity, as ~~otherwise permitted pursuant to this Agreement; and (e) without limiting~~ applicable, as a Lender or an Issuing Bank), but all such Persons shall have the ~~generality~~ benefit of ~~any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold~~ the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lenderindemnities provided for hereunder.

Appears in 2 contracts

Samples: Credit Facility Agreement (Exelis Inc.), Credit Facility Agreement (ITT Corp)

The Administrative Agent. Section 8.1 The Administrative Agent’s Appointment as Attorney-in-Fact. (a) Each ~~of the Lender Parties~~ Grantor hereby irrevocably constitutes and appoints the Administrative Agent and any officer or agent thereof, with full power of substitution, as its ~~agent hereunder~~ true and ~~under~~ lawful attorney-in- fact with full irrevocable power and authority in the ~~other Loan Documents~~ place and ~~authorizes~~ stead of such Grantor and in the ~~Administrative Agent to take~~ name of such ~~actions on~~ Grantor or in its ~~behalf~~own name, ~~including execution~~ for the purpose of ~~the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by~~ carrying out the terms of ~~the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder~~ this Agreement at any time an Event of Default shall have occurred and be continuing, to take any and all reasonably appropriate action and to execute any and all documents and instruments which may be reasonably necessary or desirable to accomplish the ~~same rights~~ purposes of this Agreement at any time an Event of Default shall have occurred and ~~powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent~~be continuing, ~~and such bank and its Affiliates may accept deposits from~~and, lend money to and generally engage in any kind of business with the Borrowers or any of the Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without without limiting the generality of the foregoing, each Grantor hereby gives the Administrative Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following at any time an Event of Default shall have occurred and be continuing: (ai) pay or discharge Taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof; (ii) execute, in connection with any sale provided for in Section 7.4 or Section 7.5, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and (iii) (A) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Administrative Agent or as the Administrative Agent shall ~~not be subject~~ direct; (B) take possession of and indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Account, Instrument, General Intangible, Chattel Paper or Payment Intangible comprising a portion of the Collateral or with respect to any ~~fiduciary~~ other Collateral, and to file any claim or to take any other ~~implied duties, regardless~~ action or proceeding in any court of ~~whether a Default has occurred and is continuing; (b)~~ law or equity or otherwise deemed appropriate by the Administrative Agent ~~shall not have~~ for the purpose of collecting any ~~duty to take~~ or all such moneys due under any ~~discretionary action~~ Account, Instrument or exercise any discretionary powers, except discretionary rights and powers 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 General Intangible comprising a portion of the ~~Lenders as shall be necessary under the circumstances as provided in Section 9.02)~~Collateral or with respect to any other Collateral whenever payable; ~~and~~ (cC) ~~except as expressly set forth in the Loan Documents~~ask or demand for, ~~the Administrative Agent shall not have any duty to disclose~~collect, and ~~shall not be liable for the failure to disclose, any information relating to any Borrower or any~~ receive payment of ~~the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable~~ and receipt for any ~~action taken~~ and all moneys, claims and other amounts due or ~~not taken by it with the consent~~ to become due at any time in respect of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge arising out of any ~~Default unless~~ Collateral; (D) sign and ~~until written notice thereof is given to the Administrative Agent by the Borrower Representative~~ indorse any invoices, freight or ~~a Lender Party~~express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and ~~the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or~~ other documents 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) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality, validity, enforceability, effectiveness, adequacy or genuineness of any Loan Document or any other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; or (~~vii~~E) receive, change the ~~satisfaction~~ address for delivery, open and dispose of mail addressed to 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. The Administrative Agent shall be entitled to rely uponGrantor, and ~~shall not incur any liability~~ execute, assign and indorse negotiable and other instruments for ~~relying upon~~the payment of money, ~~any representation, notice, request, certificate, consent, statement, instrument, document~~ documents of title or other ~~writing~~ evidences of payment, shipment or communication believed by it to be genuine and correct, and to have been authorized, signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made or authorized by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable storage for any ~~action taken or not taken by it in accordance with the advice~~ form of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Company (if such successor is not a Lender). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, Collateral on behalf of and in the ~~Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank or an Affiliate~~ name of any ~~such commercial bank~~Grantor; (F) commence and prosecute any suits, ~~which shall be reasonably satisfactory~~ actions or proceedings at law or in equity in any court of competent jurisdiction to collect the ~~Company. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed~~ Collateral or any portion thereof and to and become vested with all the rights, powers, privileges, obligations and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties enforce any other right in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative AgentCollateral; (bG) ~~the Administrative Agent (i) makes no representation~~ defend any suit, action or ~~warranty, express or implied, as~~ proceeding brought against such Grantor with respect to ~~the completeness or accuracy of~~ any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.Collateral;

Appears in 2 contracts

Samples: Revolving Credit and Term Loan Agreement (RadNet, Inc.), Revolving Credit and Term Loan Agreement (RadNet, Inc.)

The Administrative Agent. Each of the Lenders and the Issuing Lender ~~Parties~~ hereby irrevocably appoints the Administrative Agent and the Euro Administrative Agent as its ~~agent hereunder and under the other Loan Documents~~ agents and authorizes the Administrative Agent and the Euro 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~~ Agents by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Lender serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any of ~~the Subsidiaries or other Affiliate~~ its Affiliates thereof as if it were not the Administrative Agent hereunder. The Administrative ~~Agent~~ Agents shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative ~~Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing; , (b) the Administrative ~~Agent~~ Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative ~~Agent is~~ Agents 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~~10.02); , and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative ~~Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Borrower~~ the Borrowers or any of ~~the~~ their Subsidiaries that is communicated to or obtained by the ~~bank serving as~~ Administrative ~~Agent~~ Agents or any of ~~its~~ their Affiliates in any capacity. The Administrative ~~Agent~~ Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own gross negligence or willful misconduct. The Administrative ~~Agent~~ Agents 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~~ Agents by the ~~Borrower Representative~~ Borrowers or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document;~~ this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~with any Loan Document;~~ herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent~~Agents. The Administrative ~~Agent~~ Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative ~~Agent~~ Agents also may rely upon any statement made to it them orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative ~~Agent~~ Agents may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative ~~Agent~~ Agents may perform any and all ~~its~~ their duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative ~~Agent~~Agents. The Administrative ~~Agent~~ Agents and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative ~~Agent~~ Agents 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 Agents. In addition, each of the Lenders, the Issuing Lender and the Euro Issuing Lender hereby indemnifies the Agents (to the extent not reimbursed by the Borrowers), ratably according to its respective pro rata share of the total of the Commitments, or if no Commitments are outstanding, the respective pro rata share of the total of the Commitments immediately prior to the time Commitments ceased to be outstanding held by each of them, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Administrative ~~Agent~~Agents (or either of them) in any way relating to or arising out of this Agreement or any action taken or omitted by the Administrative Agents under this Agreement or the other Loan Documents (including any action taken or omitted under Article II of this Agreement). Without limitation of the foregoing, each Lender, the Issuing Lender and the Euro Issuing Lender agrees to reimburse each of the Administrative Agents promptly upon demand for its respective pro rata share of the total of the Commitments of any out-of-pocket expenses (including reasonable counsel fees) incurred by the Administrative Agents (or either of them) in connection with the preparation, execution, administration or enforcement of, or legal advice in respect of rights or responsibilities under, this Agreement or the other Loan Documents to the extent that such Administrative Agent is not reimbursed for such expenses by the Borrower. The provisions of this section shall survive the termination of this Agreement and the payment of the Obligations. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, either of the Administrative ~~Agent~~ Agents may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Lender, the Euro Issuing Lender and the ~~Borrower Representative~~US Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, with the approval of US Borrower, which shall not be unreasonably withheld, conditioned or delayed, and shall not be required during the existence of an Event of Default, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Lender, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article VIII and ~~9.03~~ Section 10.03 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agents or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agents or any other Lender ~~Party~~ 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

Appears in 2 contracts

Samples: Credit Agreement (Dynamic Materials Corp), Credit Agreement (Dynamic Materials Corp)

Appears in 2 contracts

Samples: Credit Agreement (Seagate Technology), Credit Agreement (Seagate Technology)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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. ~~The~~ Any bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the ~~Borrowers~~ Company or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 9.02~~the Loan Documents); , provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Borrower~~ the Company or any ~~of the Subsidiaries~~ Subsidiary that is communicated to or obtained by ~~the~~ any bank serving as Administrative Agent or any of 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~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 9.02~~the Loan Documents) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct, as determined by a court of competent jurisdiction by a final and non- appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative or~~ Company, a Lender ~~Party~~or an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~with any Loan Document;~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~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. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized~~signed, ~~signed~~ sent or ~~sent~~ otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~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. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the ~~appointment and acceptance~~ terms of ~~a successor Administrative Agent as provided in~~ this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Company, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a ~~commercial bank~~ Lender with an office in the United States of America, having a combined capital and surplus of at least $500,000,000, or an Affiliate of any such ~~commercial bank, which shall be reasonably satisfactory to the Company~~Lender. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the ~~Borrowers~~ Company to a the successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Company and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article~~Article and Section 10.02, ~~Sections 2.17(d)~~ as well as any exculpatory, reimbursement and ~~9.03~~ indemnification provisions set forth in any other Loan Document, 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~~Agent or as sub-agent, as the case may be. Each Lender ~~Party~~ and Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender ~~Party~~ and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption or an Accession Agreement pursuant to which it shall become a Lender ~~Party hereby agrees that (a) it has requested a copy of~~ hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each ~~Report prepared~~ Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Lender or Issuing Bank shall have any right individually to enforce any guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the ~~Administrative Agent; (b)~~ Lenders and the ~~Administrative Agent (i) makes no representation or warranty~~Issuing Bank in accordance with the terms thereof. Each Lender and each Issuing Bank will be deemed, ~~express or implied~~by its acceptance of the benefits of the guarantees of the Obligations provided under the Loan Documents, as to have agreed to the ~~completeness or accuracy of any Report or any of~~ foregoing provisions. Notwithstanding anything herein to the ~~information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c)~~ contrary, neither the ~~Reports are not comprehensive audits or examinations, and that~~ Lead Arrangers nor any Person ~~performing~~ named on the cover page of this Agreement as a Syndication Agent, a Documentation Agent or a Joint Bookrunner shall have any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct duties or ~~supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower~~ obligations under this Agreement or any other ~~Person~~ Loan Document (except in its capacity, as ~~otherwise permitted pursuant to this Agreement; and (e) without limiting~~ applicable, as a Lender or an Issuing Bank), but all such Persons shall have the ~~generality~~ benefit of ~~any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold~~ the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lenderindemnities provided for hereunder.

Appears in 2 contracts

Samples: Credit Facility Agreement (Exelis Inc.), Credit Facility Agreement (Exelis Inc.)

Appears in 2 contracts

Samples: Credit Agreement (Potbelly Corp), Credit Agreement (Potbelly Corp)

Appears in 2 contracts

Samples: Credit Facility Agreement (Xylem Inc.), Credit Facility Agreement (Xylem Inc.)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder~~ both as administrative agent and ~~under the other Loan Documents~~ collateral 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 hereof and the ~~Loan~~ other Financing Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder and under the other Financing Documents shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent,~~ Agent and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrowers~~ any Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein or in the ~~Loan~~ other Financing Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby or thereby 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); , and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for ~~the~~ any failure to disclose, any information relating to ~~any Borrower~~ the Borrowers or any of ~~the~~ their Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative~~ Borrowers or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document;~~ this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~with any Loan Document;~~ herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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. With respect to the release of Collateral, the Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any property covered by this Agreement or the other Financing Documents (i) upon termination or expiration of the Commitments, the payment and satisfaction of all obligations arising with respect to the Loans, all fees and expenses, the expiration or termination of all the Letters of Credit and the reimbursement of all LC Disbursements; or (ii) constituting property being sold or disposed of in compliance with the provisions of the Financing Documents (and the Administrative Agent may rely in good faith conclusively on any certificate stating that the property is being sold or disposed of in compliance with the provisions of the Financing Documents, without further inquiry); provided, however, that (x) the Administrative Agent shall not be required to execute any release on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair any Liens upon all interests retained, all of which shall continue to constitute part of the property covered by the Financing Documents. With respect to perfecting security interests in Collateral which, in accordance with Article 9 of the Uniform Commercial Code or any comparable provision of any Lien perfection statute in any applicable jurisdiction, can be perfected only by possession, each Lender hereby appoints each other Lender its agent for the purpose of perfecting such interest. Should any Lender (other than the Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the Administrative Agent, and, promptly upon the Administrative Agent’s request, shall deliver such Collateral to the Administrative Agent or in accordance with the Administrative Agent’s instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce this Agreement or any other Financing Document or to realize upon any Collateral for the Loans, it being understood and agreed that such rights and remedies may be exercised only by or with the approval of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent or any Lender may be the purchaser of any and all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Loans as a credit on account of the purchase price for any collateral payable by the Agent at such sale. The Administrative Agent shall not be required to foreclose under, or otherwise exercise any rights and remedies under, any Mortgage if at the time that the Administrative Agent is required or directed to do so, (a) the Administrative Agent has not received environmental assessment reports reasonably satisfactory to it with respect to the property encumbered by such Mortgage, prepared by environmental testing firms reasonably satisfactory to it, indicating that the property encumbered by such Mortgage and the operations at such property are not in material violation of applicable Environmental Laws or (b) the Administrative Agent is not otherwise reasonably satisfied that there is no material environmental liability with respect to the applicable property or the operations at such property. In the event that a petition seeking relief under Title 11 of the United States Code or any other Federal, state or foreign bankruptcy, insolvency, liquidation or similar law is filed by or against any Borrower or any other Person obligated under the Financing Document, the Administrative Agent is authorized, to the fullest extent permitted by applicable law, to file a proof of claim on behalf of itself and the Lenders in such proceeding for the total amount of obligations owed by such Person. With respect to any such proof of claim which the Administrative Agent may file, each Lender acknowledges that without reliance on such proof of claim, such Lender shall make its own evaluation as to whether an individual proof of claim must be filed in respect of such obligations owed to such Lender and, if so, take the steps necessary to prepare and timely file such individual claim. Subject to the limitations set forth below, the Administrative Agent may, at its option, from time to time, at any time on or after a Default and for so long as the same is continuing or upon any other failure of a condition precedent to providing Loans and Letters of Credit hereunder, make such disbursements and advances (“Special Agent Advances”) which the Administrative Agent, in good faith, (a) deems necessary or desirable either to preserve or protect the Collateral or any portion thereof or (b) enhance the likelihood of, or maximize the amount of, repayment by the Borrowers and Guarantors of the Loans and other Obligations; provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (b) shall not exceed 10% of the Commitment or result in the total amount of Obligations outstanding to exceed the Commitment or (c) to pay any other amount chargeable to any Borrower or Guarantor pursuant to the terms of this Agreement or any of the other Financing Documents consisting of (i) costs, fees and expenses and (ii) payments to any Issuing Bank. Special Agent Advances shall be repayable on demand and together with all interest thereon shall constitute Obligations secured by the Collateral; provided, that if a Special Agent Advance remains outstanding for more than 60 days, the Required Lenders may revoke the Administrative Agent’s authorization to make Special Agent Advances. Any such revocation must be in writing and shall become effective prospectively upon the Agent’s receipt thereof. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the interest rate then payable on Alternate Base Rate Loans from time to time and shall be payable on demand. Without limitation of its obligations pursuant to the first sentence of Section 2.01, each Lender agrees that it shall make available to the Administrative Agent, upon the Administrative Agent’s demand, in immediately available funds, the amount equal to such Lender’s pro rata share of each such Special Agent Advance. If such funds are not made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such funds, on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Effective Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at an interest rate equal to the LIBO Rate plus 2.5% per annum. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, with the approval of the Borrowers (not to be unreasonably withheld, except that no such approval shall be required upon the occurrence and continuance of a Default), to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial bank, which shall be reasonably satisfactory to the Company~~bank with such an office. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender ~~Party hereby agrees that (a) it has requested a copy~~ acknowledges the potential conflict of interest of each ~~Report prepared by or on behalf~~ other Lender as a result of Lenders holding disproportionate interests in the ~~Administrative Agent; (b)~~ Loans, and expressly consents to and waives any claim based upon such conflict of interest. The parties hereto agree that the ~~Administrative~~ titles Co-Syndication Agent ~~(i) makes~~ and Co-Documentation Agent are honorary and confer no ~~representation or warranty~~duties upon such agents except as a Lender hereunder, ~~express or implied, as~~ provided that each Co-Syndication Agent and Co-Documentation Agent shall be entitled to the ~~completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report~~ rights and ~~(ii) shall not be liable~~ benefits specifically provided for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lenderherein.

Appears in 2 contracts

Samples: Credit Agreement (Phillips Van Heusen Corp /De/), Credit Agreement (Phillips Van Heusen Corp /De/)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as ~~its~~ administrative agent ~~hereunder and~~ under the ~~other~~ Loan ~~Documents~~ Documents, 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. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 9.02~~the Loan Documents); , provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower, any ~~Borrower~~ Subsidiary or any other Affiliate of any of the ~~Subsidiaries~~ foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of 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~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 9.02~~the Loan Documents) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~with any Loan Document;~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document;~~ Document or the occurrence of any Default, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality~~sufficiency, validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~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 satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or ~~communication~~ intranet website posting or other distribution) believed by it to be genuine and ~~correct, and~~ to have been ~~authorized~~signed, ~~signed~~ sent or ~~sent~~ otherwise authenticated by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). The Administrative Agent also ~~may rely~~ shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and ~~shall not incur~~ may act upon any ~~liability for relying thereon~~such statement prior to receipt of written confirmation thereof. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the ~~appointment and acceptance~~ terms of ~~a successor Administrative Agent as provided in~~ this paragraph, the Administrative Agent may resign at any time ~~by notifying the Lenders~~from its capacity as such. In connection with such resignation, the ~~Issuing Bank~~ Administrative Agent shall give notice of its intent to resign to the Lenders and the ~~Borrower Representative~~Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the ~~right to appoint a successor~~ right, with the consent of the ~~Company~~ Borrower (~~if such successor is~~ not to be unreasonably withheld), to appoint a ~~Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~resignation~~intent to resign, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders, appoint a successor Administrative ~~Agent~~Agent reasonably acceptable to the Borrower, which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by the ~~Borrowers~~ Borrower and such successor. ~~After~~ Following the effectiveness of the Administrative Agent’s resignation ~~hereunder~~from its capacity as such, the provisions of this ~~Article~~Article and Section 9.03, ~~Sections 2.17(d)~~ as well as any exculpatory, reimbursement and ~~9.03~~ indemnification provisions set forth in any other Loan Document, 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arrangers or any other ~~Lender Party~~ Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arrangers or any other ~~Lender Party~~ Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Acceptance or an Incremental Facility Agreement pursuant to which it shall become a Lender ~~Party hereby agrees that (a) it has requested a copy of~~ hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each ~~Report prepared~~ Loan Document and each other document required to be delivered to, or be approved by or ~~on behalf of the Administrative Agent; (b)~~ satisfactory to, the Administrative Agent ~~(i) makes no representation~~ or ~~warranty, express or implied, as~~ the Lenders on the Effective Date. Notwithstanding anything herein to the ~~completeness or accuracy of any Report or any of~~ contrary, neither the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that Arrangers nor any Person ~~performing~~ named on the cover page of this Agreement as a Documentation Agent shall have any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct duties or ~~supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower~~ obligations under this Agreement or any other ~~Person~~ Loan Document (except in its capacity, as ~~otherwise permitted pursuant to~~ applicable, as a Lender), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this ~~Agreement; and (e) without limiting~~ Article are solely for the ~~generality~~ benefit of ~~any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold~~ the Administrative Agent and the Lenders (except as provided herein with respect to consent rights over successor Administrative Agents), and neither the Borrower nor any other Loan Party shall have any rights as a third party beneficiary of any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lenderprovisions.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Newmont Mining Corp /De/)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its administrative agent ~~hereunder~~ and ~~under the other Loan Documents~~ collateral 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the ~~Collateral;~~ Collateral or (~~vii~~vi) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Bank, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 Syndication Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender ~~Party~~ hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. Except with respect to the exercise of setoff rights of any Lender, in accordance with Section 9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or with respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (aexcept as otherwise set forth herein in case of the Administrative Agent) ~~it has requested a copy of each Report prepared by or~~ authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the ~~Administrative Agent; (b)~~ Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders hereby authorize the Administrative Agent to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) ~~makes no representation~~ as described in Section 9.02(d); (ii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or ~~warranty~~(iii) if approved, ~~express~~ authorized or ~~implied~~ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. The Borrower, on its behalf and on behalf of its Subsidiaries, and each Lender, on its behalf and on the behalf of its affiliated Secured Parties, hereby irrevocably constitute the Administrative Agent as the holder of an irrevocable power of attorney (fondé de pouvoir within the meaning of Article 2692 of the Civil Code of Québec) in order to hold hypothecs and security granted by the Borrower or any Subsidiary on property pursuant to the ~~completeness~~ laws of the Province of Quebec to secure obligations of the Borrower or ~~accuracy~~ any Subsidiary under any bond, debenture or similar title of indebtedness issued by the Borrower or any Subsidiary in connection with this Agreement, and agree that the Administrative Agent may act as the bondholder and mandatary with respect to any bond, debenture or similar title of indebtedness that may be issued by the Borrower or any Subsidiary and pledged in favor of the Secured Parties in connection with this Agreement. Notwithstanding the provisions of Section 32 of the An Act respecting the special powers of legal persons (Quebec), JPMorgan Chase Bank, N.A. as Administrative Agent may acquire and be the holder of any ~~Report~~ bond issued by the Borrower or any Subsidiary in connection with this Agreement (i.e., the fondé de pouvoir may acquire and hold the first bond issued under any deed of hypothec by the Borrower or any Subsidiary). The Administrative Agent is hereby authorized to execute and deliver any documents necessary or appropriate to create and perfect the rights of pledge for the benefit of the ~~information contained therein~~ Secured Parties including a right of pledge with respect to the entitlements to profits, the balance left after winding up and the voting rights of the Borrower as ultimate parent of any subsidiary of the Borrower which is organized under the laws of the Netherlands and the Equity Interests of which are pledged in connection herewith (a “Dutch Pledge”). Without prejudice to the provisions of this Agreement and the other Loan Documents, the parties hereto acknowledge and agree with the creation of parallel debt obligations of the Borrower or any ~~inaccuracy~~ relevant Subsidiary as will be described in any Dutch Pledge (the “Parallel Debt”), including that any payment received by the Administrative Agent in respect of the Parallel Debt will—conditionally upon such payment not subsequently being avoided or ~~omission contained in~~ reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application—be deemed a ~~Report~~ satisfaction of a pro rata portion of the corresponding amounts of the Obligations, and any payment to the Secured Parties in satisfaction of the Obligations shall—conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application—be deemed as satisfaction of the corresponding amount of the Parallel Debt. The parties hereto acknowledge and agree that, for purposes of a Dutch Pledge, any resignation by the Administrative Agent is not effective until its rights under the Parallel Debt are assigned to the successor Administrative Agent. The parties hereto acknowledge and agree for the purposes of taking and ensuring the continuing validity of German law governed pledges (Pfandrechte) with the creation of parallel debt obligations of the Borrower as will be further described in a separate German law governed parallel debt undertaking. The Administrative Agent shall (i) hold such parallel debt undertaking as fiduciary agent (Treuhaender) and (ii) ~~shall not be liable~~ administer and hold as fiduciary agent (Treuhaender) any pledge created under a German law governed Collateral Document which is created in favor of any Secured Party or transferred to any Secured Party due to its accessory nature (Akzessorietaet), in each case in its own name and for ~~any information contained in any Report; (c)~~ the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations account of the ~~Borrowers’ personnel~~ Secured Parties. Each Lender, on its own behalf and ~~that~~ on behalf of its affiliated Secured Parties, hereby authorizes the Administrative Agent ~~undertakes no obligation~~ to ~~update~~enter as its agent in its name and on its behalf into any German law governed Collateral Document, ~~correct or supplement the Reports; (d) it will keep all Reports confidential~~ to accept as its agent in its name and ~~strictly for~~ on its ~~internal use~~behalf any pledge under such Collateral Document and to agree to and execute as agent its in its name and on its behalf any amendments, supplements and ~~it will not share the Report with~~ other alterations to any ~~Borrower or~~ such Collateral Document and to release any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent such Collateral Document and any pledge created under any such ~~other Person preparing a Report harmless from and against,~~ Collateral Document in accordance with the ~~claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as~~ provisions herein and/or the ~~direct or indirect result of~~ provisions in any ~~third parties who might obtain all or part of any Report through the indemnifying Lender~~such Collateral Document.

Appears in 1 contract

Samples: Credit Agreement (Endo Pharmaceuticals Holdings Inc)

Appears in 1 contract

Samples: Credit Agreement (Burger King Holdings Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Banks hereby irrevocably appoints ~~the Administrative Agent~~ JPMorgan Chase Bank, N.A. as its agent ~~hereunder and under the other Loan Documents~~ 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrowers~~ Company or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Borrower~~ the Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative~~ Company or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or ~~document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ document or (~~vii~~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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Company. Upon any such resignation, the Required Lenders shall have the right ~~to appoint a successor~~ (with the consent of the Company (such consent not to be unreasonably withheld or delayed), provided that no consent of the Company shall be required if ~~such successor~~ an Event of Default under clauses (a), (b), (h), (i) or (j) of Article VII has occurred and is ~~not~~ continuing) to appoint a ~~Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~the Borrowers~~ any Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the Borrowers~~ such Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 Syndication Agent or 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 ~~Party~~ hereby ~~agrees that~~ makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative 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 (aexcept as otherwise set forth herein in case of the Administrative Agent) ~~it has requested a copy of each Report prepared by or~~ authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the ~~Administrative Agent; (b)~~ Lenders to enforce the ~~Administrative Agent (i) makes no representation~~ payment of the principal of and interest on any Loan after the date such principal or ~~warranty, express or implied, as~~ interest has become due and payable pursuant to the ~~completeness or accuracy~~ terms of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

Appears in 1 contract

Samples: Credit Agreement (Hillenbrand, Inc.)

The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the ~~Lender Parties~~ Lenders hereby irrevocably ~~appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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. ~~The~~ Any bank serving as ~~the~~ Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall ~~not~~ have ~~any~~ no duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall ~~not~~ have ~~any~~ no duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower, the Borrower or any ~~of the Subsidiaries~~ Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own bad faith, gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~with any Loan Document;~~ herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by ~~the Administrative Agent~~it. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 9.03 shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the right (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII) with the consent of, the Borrower, which shall not be unreasonably withheld) to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may~~may (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Borrower, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the ~~Lender Parties~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After ~~the~~ an Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. ~~Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf~~ None of the ~~Administrative Agent; (b)~~ institutions named as Syndication Agent or Joint Lead Arranger and Joint Bookrunner on the ~~Administrative Agent (i) makes no representation~~ cover page of this Agreement shall, in their capacities as such, have any duties or ~~warranty, express or implied, as to the completeness or accuracy~~ responsibilities of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to kind under this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

Appears in 1 contract

Samples: 364 Day Credit Agreement (Kellogg Co)

Appears in 1 contract

Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other ~~Loan~~ Financing Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the ~~Loan~~ Financing Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the ~~Loan~~ Financing Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the ~~Loan~~ Financing 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); , and (c) except as expressly set forth in the ~~Loan~~ Financing Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any ~~Loan~~ Financing Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any ~~Loan~~ Financing Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any ~~Loan~~ Financing Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any ~~Loan~~ Financing Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the ~~Collateral;~~ Collateral or (~~vii~~vi) the satisfaction of any condition set forth in Article IV or elsewhere in any ~~Loan~~ Financing Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in the United States, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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~~ Financing Document or any related agreement or any document furnished hereunder or thereunder. None of the Lenders, if any, identified in this Agreement as a Syndication Agent, Co-Documentation Agent, Joint Lead Arranger or Joint Bookrunner 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 ~~Party~~ hereby ~~agrees that~~ makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative 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 (aexcept as otherwise set forth herein in case of the Administrative Agent) ~~it has requested a copy of each Report prepared by or~~ 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. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Security Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Security Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the Security Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Financing Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 9.02(d); (bii) as permitted by, but only in accordance with, the terms of the applicable Financing Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Financing Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent ~~(i) makes no representation~~ shall not be required to execute any such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, ~~express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report~~ and (ii) such release shall not ~~be liable for any information contained~~ in any ~~Report;~~ manner discharge, affect or impair the Secured Obligations or any Liens upon (~~c) the Reports are not comprehensive audits~~ or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations obligations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any ~~other Person except as otherwise permitted pursuant~~ Subsidiary in respect of) all interests retained by the Borrower or any Subsidiary, including (without limitation) the proceeds of the sale, all of which shall continue to ~~this Agreement; and (e) without limiting~~ constitute part of the ~~generality~~ Collateral. In accordance with Article 6 of ~~any other indemnification provision contained in this~~ the Collateral Agency Agreement, ~~it will pay and protect, and indemnify, defend, and hold~~ the Administrative Agent and the Lenders hereby designate and appoint JPMorgan Chase Bank, N.A. as the successor Collateral Agent under the Collateral Agency Agreement and the Security Documents, which appointment shall become effective as of the Effective Date, whereupon JPMorgan Chase Bank, N.A., as the successor Collateral Agent, shall become party to the Collateral Agency Agreement and the Security Documents vested with all the authority, rights, powers, duties and obligations as if originally named as the Collateral Agent thereunder. By its execution hereof, JPMorgan Chase Bank, N.A. hereby accepts such designation and appointment. The resignation of Barclays Bank PLC, as the existing Collateral Agent, (and the Administrative Agent and the Lenders hereby authorize JPMorgan Chase Bank, N.A., as successor Collateral Agent to notify Barclays Bank PLC of such removal), shall become effective simultaneously with the acceptance of the appointment by JPMorgan Chase Bank, N.A., without any ~~such other Person preparing a Report harmless from~~ further action on behalf of the Lenders or the Administrative Agent. Further, each Lender and ~~against~~the Administrative Agent hereby direct the Collateral Agent to enter into that certain Amendment No. 1 to Amended and Restated Collateral Agency Agreement, dated as of the date hereof, between Borrower and Collateral Agent, the ~~claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by~~ form of which is attached hereto as ~~the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.~~Exhibit I.

Appears in 1 contract

Samples: Credit Agreement (Puget Energy Inc /Wa)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including (in the case of the Administrative Agent) 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as the Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; , or (~~vii~~vi) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the ~~Administrative~~ applicable Agent. Subject to the appointment and acceptance of a successor ~~Administrative~~ Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a successor ~~with~~ (such successor to be approved by the ~~consent~~ Borrower, such approval not to be unreasonably withheld or delayed; provided, however, if an Event of Default shall exist at such time, no approval of the ~~Company (if such successor is not a Lender~~Borrower shall be required hereunder). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, ~~privileges, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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 the Administrative Agent. Each Lender ~~Party~~ acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~Party also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) 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~~thereunder and in deciding whether or to the extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a Syndication Agent or 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 ~~Party~~ hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. Except with respect to the exercise of setoff rights of any Lender, in accordance with Section 9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or with respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (aexcept as otherwise set forth herein in case of the Administrative Agent) ~~it has requested a copy of each Report prepared by or~~ 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. In its capacity, the Administrative Agent is a “representative” of the Holders of Secured Obligations within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Holder of Secured Obligations (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Holders of Secured Obligations upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Holders of Secured Obligations any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Holders of Secured Obligations. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 9.02(c); (bii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Loan Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Holders of Secured Obligations herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent ~~(i) makes no representation~~ shall not be required to execute any such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, ~~express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report~~ and (ii) such release shall not ~~be liable for any information contained~~ in any ~~Report;~~ manner discharge, affect or impair the Secured Obligations or any Liens upon (~~c) the Reports are not comprehensive audits~~ or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations obligations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any ~~other Person except as otherwise permitted pursuant~~ Subsidiary in respect of) all interests retained by the Borrower or any Subsidiary, including (without limitation) the proceeds of the sale, all of which shall continue to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or constitute part of ~~any Report through~~ the ~~indemnifying Lender~~Collateral.

Appears in 1 contract

Samples: Credit Agreement (Dean Foods Co)

The Administrative Agent. 7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc. ----------------------------------------------------------- (a) Each ~~of the Lender Parties~~ Grantor hereby irrevocably constitutes and appoints the Administrative Agent and any officer or agent thereof, with full power of substitution, as its ~~agent hereunder~~ true and ~~under~~ lawful attorney-in-fact with full irrevocable power and authority in the ~~other Loan Documents~~ place and ~~authorizes~~ stead of such Grantor and in the ~~Administrative Agent to take~~ name of such ~~actions on~~ Grantor or in its ~~behalf~~own name, ~~including execution~~ for the purpose of ~~the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by~~ carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the ~~Loan Documents~~purposes of this Agreement, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agentand, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of the Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without without limiting the generality of the foregoing, each Grantor hereby gives the Administrative Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following: (ai) in the name of such Grantor or its own name, or otherwise, take possession of and indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Administrative Agent for the purpose of collecting any and all such moneys due under any Receivable or with respect to any other Collateral whenever payable; (ii) in the case of any Intellectual Property, execute and deliver, and have recorded, any and all agreements, instruments, documents and papers as the Administrative Agent may request to evidence the Administrative Agent's and the Lenders' security interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby; (iii) pay or discharge taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof; (iv) execute, in connection with any sale provided for in Section 6.6 or 6.7, any indorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and (1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Administrative Agent or as the Administrative Agent shall ~~not be subject~~ direct; (2) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (3) sign and indorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (5) defend any suit, action or proceeding brought against such Grantor with respect to any ~~fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing~~Collateral; (b6) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Administrative Agent may deem appropriate; (7) assign any Copyright, Patent or Trademark (along with the goodwill of the business to which any such Copyright, Patent or Trademark pertains), throughout the world for such term or terms, on such conditions, and in such manner, as the Administrative Agent shall ~~not have~~ in its sole discretion determine; and (8) generally, sell, transfer, pledge and make any ~~duty~~ agreement with respect to ~~take~~ or otherwise deal with any ~~discretionary action or exercise any discretionary powers, except discretionary rights~~ of the Collateral as fully and ~~powers expressly contemplated by the Loan Documents that~~ completely as though the Administrative Agent ~~is required~~ were the absolute owner thereof for all purposes, and do, at the Administrative Agent's option and such Grantor's expense, at any time, or from time to ~~exercise~~ time, all acts and things which the Administrative Agent deems necessary to protect, preserve or realize upon the Collateral and the Administrative Agent's and the Lenders' security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do. Anything in ~~writing as directed by~~ this Section 7.1(a) to 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); and (c) except as expressly set forth in the Loan Documentscontrary notwithstanding, the Administrative Agent agrees that it will not exercise any rights under the power of attorney provided for in this Section 7.1(a) unless an Event of Default shall ~~not~~ have occurred and be continuing. (b) If any ~~duty~~ Grantor fails to ~~disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower~~ perform or ~~any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or~~ comply with any of its ~~Affiliates in~~ agreements contained herein, the Administrative Agent, at its option, but without any ~~capacity.~~ obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement. (c) The expenses of the Administrative Agent ~~shall not be liable for any action taken or not taken by it~~ incurred in connection 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~~ actions undertaken as provided in this Section ~~9.02) or in~~ 7.1, together with interest thereon at a rate per annum equal to the ~~absence~~ rate per annum at which interest would then be payable on past due Revolving Credit Loans that are Base Rate Loans under the Credit Agreement, from the date of ~~its own gross negligence or willful misconduct. The~~ payment by the Administrative Agent to the date reimbursed by the relevant Grantor, shall be ~~deemed not to have knowledge of any Default unless and until written notice thereof is given~~ payable by such Grantor to the Administrative Agent by the Borrower Representative or a Lender Party, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality, validity, enforceability, effectiveness, adequacy or genuineness of any Loan Document or any other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; or (vii) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication believed by it to be genuine and correct, and to have been authorized, signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made or authorized by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Company (if such successor is not a Lender). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company. 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, obligations and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 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. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; demand. (d) ~~it will keep~~ Each Grantor hereby ratifies all ~~Reports confidential~~ that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision agencies contained in this ~~Agreement, it will pay~~ Agreement are coupled with an interest and ~~protect,~~ are irrevocable until this Agreement is terminated and ~~indemnify, defend, and hold~~ the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lendersecurity interests created hereby are released.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Reliant Building Products Inc)

Appears in 1 contract

Samples: Credit Agreement (TRAC Intermodal LLC)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder~~ both as administrative agent and ~~under the other Loan Documents~~ collateral 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 hereof and the ~~Loan~~ other Financing Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder and under the other Financing Documents shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent,~~ Agent and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein or in the ~~Loan~~ other Financing Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby or thereby 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); , and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for ~~the~~ any failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document;~~ this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~with any Loan Document;~~ herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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. With respect to the release of Collateral, the Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any property covered by this Agreement or the other Financing Documents (i) upon termination or expiration of the Commitments, the payment and satisfaction of all obligations arising with respect to the Loans, all fees and expenses, the expiration or termination of all the Letters of Credit and the reimbursement of all LC Disbursements; or (ii) constituting property being sold or disposed of in compliance with the provisions of the Financing Documents (and the Administrative Agent may rely in good faith conclusively on any certificate stating that the property is being sold or disposed of in compliance with the provisions of the Financing Documents, without further inquiry); provided, however, that (x) the Administrative Agent shall not be required to execute any release on terms which, in the Administrative Agent's opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair any Liens upon all interests retained, all of which shall continue to constitute part of the property covered by the Financing Documents. With respect to perfecting security interests in Collateral which, in accordance with Article 9 of the Uniform Commercial Code or any comparable provision of any Lien perfection statute in any applicable jurisdiction, can be perfected only by possession, each Lender hereby appoints each other Lender its agent for the purpose of perfecting such interest. Should any Lender (other than the Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the Administrative Agent, and, promptly upon the Administrative Agent's request, shall deliver such Collateral to the Administrative Agent or in accordance with the Administrative Agent's instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce this Agreement or any other Financing Document or to realize upon any Collateral for the Loans, it being understood and agreed that such rights and remedies may be exercised only by or with the approval of the Administrative Agent. In the event that a petition seeking relief under Title 11 of the United States Code or any other Federal, state or foreign bankruptcy, insolvency, liquidation or similar law is filed by or against the Borrower or any other Person obligated under the Financing Document, the Administrative Agent is authorized, to the fullest extent permitted by applicable law, to file a proof of claim on behalf of itself and the Lenders in such proceeding for the total amount of obligations owed by such Person. With respect to any such proof of claim which the Administrative Agent may file, each Lender acknowledges that without reliance on such proof of claim, such Lender shall make its own evaluation as to whether an individual proof of claim must be filed in respect of such obligations owed to such Lender and, if so, take the steps necessary to prepare and timely file such individual claim. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, with the approval of the Borrower (not to be unreasonably withheld, except that no such approval shall be required upon the occurrence and continuance of an Event of Default), to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Bank, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial bank, which shall be reasonably satisfactory to the Company~~bank with such an office. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender ~~Party hereby agrees that (a) it has requested a copy~~ acknowledges the potential conflict of interest of each ~~Report prepared by or on behalf~~ other Lender as a result of Lenders holding disproportionate interests in the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinationsLoans, and ~~that~~ expressly consents to and waives any ~~Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly~~ claim based upon ~~the Borrowers’ books and records, as well as on representations~~ such conflict of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lenderinterest.

Appears in 1 contract

Samples: Credit Agreement (Wire One Technologies Inc)

The Administrative Agent. Each of the Lenders and the Issuing Lender ~~Parties~~ hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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~~10.02); , and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of 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~~10.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document;~~ herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein or therein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Lender and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Lender, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial bank~~ Lender with an office in New York, New York or an Affiliate of ~~any such commercial bank, which shall be reasonably satisfactory to the Company~~a Lender. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 10.03 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as Notwithstanding anything herein to the ~~completeness or accuracy~~ contrary the Arranger and the Co-Documentation Agent named on the cover page of ~~any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii)~~ this Agreement shall not ~~be liable for~~ have any ~~information contained in any Report; (c) the Reports are not comprehensive audits~~ duties or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in liabilities under this Agreement, ~~it will pay and protect~~except in their capacity, ~~and indemnify~~if any, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as ~~the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender~~Lenders.

Appears in 1 contract

Samples: Credit Agreement (Griffon Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the LC Issuer hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, and on behalf of the Lenders, 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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~~8.2); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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~~8.2) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the ~~Collateral;~~ Collateral or (~~vii~~vi) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent~~Agent or its counsel. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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. The Administrative Agent may from time to time change any such designations and add any Affiliates of the Administrative ~~Agent~~Agent as parties hereto for purposes of being performing the duties to be performed by the Administrative Agent hereunder. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Issuing Bank~~ LC Issuer and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the right ~~to appoint a successor~~ (with the consent of the ~~Company~~ Borrower unless a Default has occurred and is continuing (if any such ~~successor is~~ consent of the Borrower not to be unreasonably withheld or delayed)), to appoint a ~~Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the LC Issuer, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the Borrowers~~ such Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 9.6 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arranger or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arranger or any other Lender ~~Party~~ 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 identified in this Agreement as a Syndication Agent or a 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 ~~Party~~ hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as a Syndication Agent or a Documentation Agent, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraphs. Except with respect to the exercise of setoff rights of any Lender, including the LC Issuer, in accordance with the Agreement, the proceeds of which are applied in accordance with this Agreement and the other Loan Documents, and subject to the agreements in the second succeeding paragraph, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or other Loan Party with respect to any Loan Document without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. The Lenders, including the LC Issuer, are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (aexcept as otherwise set forth herein in case of the Administrative Agent) ~~it has requested a copy of each Report prepared by or~~ authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the ~~Administrative Agent; (b)~~ Lenders to enforce the ~~Administrative Agent (i) makes no representation~~ payment of the principal of and interest on any Loan or ~~warranty, express~~ any Facility LC after the date such principal or ~~implied, as~~ interest has become due and payable pursuant to the ~~completeness or accuracy~~ terms of this Agreement. The acknowledgments and agreements of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained Lender in this ~~Agreement, it will pay~~ Article X shall be deemed to be made by such Lender on behalf of itself and ~~protect,~~ its Affiliates. For purposes of such acknowledgements and ~~indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against~~agreements, the ~~claims, actions, proceedings, damages, costs, expenses,~~ term “Lender” shall include the LC Issuer and ~~other amounts (including reasonable attorney fees) incurred by as~~ the ~~direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying~~ Swing Line Lender.

Appears in 1 contract

Samples: Credit Agreement (Lancaster Colony Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder~~ both as administrative agent and ~~under the other Loan Documents~~ collateral 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 hereof and the ~~Loan~~ other Financing Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder and under the other Financing Documents shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent,~~ Agent and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrowers~~ any Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein or in the ~~Loan~~ other Financing Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby or thereby 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); , and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for ~~the~~ any failure to disclose, any information relating to ~~any Borrower~~ the Borrowers or any of ~~the~~ their Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative~~ Borrowers or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document;~~ this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~with any Loan Document;~~ herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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. With respect to the release of Collateral, the Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any property covered by this Agreement or the other Financing Documents (i) upon termination or expiration of the Commitments, the payment and satisfaction of all obligations arising with respect to the Loans, all fees and expenses, the expiration or termination of all the Letters of Credit and the reimbursement of all LC Disbursements; or (ii) constituting property being sold or disposed of in compliance with the provisions of the Financing Documents (and the Administrative Agent may rely in good faith conclusively on any certificate stating that the property is being sold or disposed of in compliance with the provisions of the Financing Documents, without further inquiry); provided, however, that (x) the Administrative Agent shall not be required to execute any release on terms which, in the Administrative Agent's opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair any Liens upon all interests retained, all of which shall continue to constitute part of the property covered by the Financing Documents. With respect to perfecting security interests in Collateral which, in accordance with Article 9 of the Uniform Commercial Code or any comparable provision of any Lien perfection statute in any applicable jurisdiction, can be perfected only by possession, each Lender hereby appoints each other Lender its agent for the purpose of perfecting such interest. Should any Lender (other than the Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the Administrative Agent, and, promptly upon the Administrative Agent's request, shall deliver such Collateral to the Administrative Agent or in accordance with the Administrative Agent's instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce this Agreement or any other Financing Document or to realize upon any Collateral for the Loans, it being understood and agreed that such rights and remedies may be exercised only by or with the approval of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent or any Lender may be the purchaser of any and all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Loans as a credit on account of the purchase price for any collateral payable by the Agent at such sale. The Administrative Agent shall not be required to foreclose under, or otherwise exercise any rights and remedies under, any Mortgage if at the time that the Administrative Agent is required or directed to do so, (a) the Administrative Agent has not received environmental assessment reports reasonably satisfactory to it with respect to the property encumbered by such Mortgage, prepared by environmental testing firms reasonably satisfactory to it, indicating that the property encumbered by such Mortgage and the operations at such property are not in material violation of applicable Environmental Laws or (b) the Administrative Agent is not otherwise reasonably satisfied that there is no material environmental liability with respect to the applicable property or the operations at such property. In the event that a petition seeking relief under Title 11 of the United States Code or any other Federal, state or foreign bankruptcy, insolvency, liquidation or similar law is filed by or against any Borrower or any other Person obligated under the Financing Document, the Administrative Agent is authorized, to the fullest extent permitted by applicable law, to file a proof of claim on behalf of itself and the Lenders in such proceeding for the total amount of obligations owed by such Person. With respect to any such proof of claim which the Administrative Agent may file, each Lender acknowledges that without reliance on such proof of claim, such Lender shall make its own evaluation as to whether an individual proof of claim must be filed in respect of such obligations owed to such Lender and, if so, take the steps necessary to prepare and timely file such individual claim. Subject to the limitations set forth below, the Administrative Agent may, at its option, from time to time, at any time on or after a Default and for so long as the same is continuing or upon any other failure of a condition precedent to providing Loans and Letters of Credit hereunder, make such disbursements and advances ("Special Agent Advances") which the Administrative Agent, in good faith, (a) deems necessary or desirable either to preserve or protect the Collateral or any portion thereof or (b) enhance the likelihood of, or maximize the amount of, repayment by the Borrowers and Guarantors of the Loans and other Obligations; provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (b) shall not exceed ten percent (10%) of the Commitment or result in the total amount of Obligations outstanding to exceed the Commitment or (c) to pay any other amount chargeable to any Borrower or Guarantor pursuant to the terms of this Agreement or any of the other Financing Documents consisting of (i) costs, fees and expenses and (ii) payments to any Issuing Bank. Special Agent Advances shall be repayable on demand and together with all interest thereon shall constitute Obligations secured by the Collateral; provided, that if a Special Agent Advance remains outstanding for more than 60 days, the Required Lenders may revoke the Administrative Agent's authorization to make Special Agent Advances. Any such revocation must be in writing and shall become effective prospectively upon the Agent's receipt thereof. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the interest rate then payable on Alternate Base Rate Loans from time to time and shall be payable on demand. Without limitation of its obligations pursuant to the first sentence of Section 2.01, each Lender agrees that it shall make available to the Administrative Agent, upon the Administrative Agent's demand, in immediately available funds, the amount equal to such Lender's pro rata share of each such Special Agent Advance. If such funds are not made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such funds, on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Effective Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent's demand, at an interest rate equal to the LIBO Rate plus 2.5% per annum. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, with the approval of the Borrowers (not to be unreasonably withheld, except that no such approval shall be required upon the occurrence and continuance of a Default), to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial bank, which shall be reasonably satisfactory to the Company~~bank with such an office. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender ~~Party hereby agrees that (a) it has requested a copy~~ acknowledges the potential conflict of interest of each ~~Report prepared by or on behalf~~ other Lender as a result of Lenders holding disproportionate interests in the ~~Administrative Agent; (b)~~ Loans, and expressly consents to and waives any claim based upon such conflict of interest. The parties hereto agree that the ~~Administrative~~ titles Co-Syndication Agent ~~(i) makes~~ and Co-Documentation Agent are honorary and confer no ~~representation or warranty~~duties upon such agents except as a Lender hereunder, ~~express or implied, as~~ provided that each Co-Syndication Agent and Co-Documentation Agent shall be entitled to the ~~completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report~~ rights and ~~(ii) shall not be liable~~ benefits specifically provided for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lenderherein.

Appears in 1 contract

Samples: Revolving Credit Agreement (Phillips Van Heusen Corp /De/)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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 this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder and under the other Loan Documents shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent ~~hereunder~~hereunder or under any other Loan Document. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein or in ~~the~~ any other Loan ~~Documents~~Document. Without limiting the generality of the foregoing, (a) the Administrative 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) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth herein or in ~~the~~ any other Loan ~~Documents~~Document, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative 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 by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document;~~ this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or under any other Loan Document or in connection ~~with any Loan Document;~~ herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or in any other Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV or elsewhere herein or in any other Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 or in any other Loan Document as well as activities as ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may~~may (in consultation with the Borrower), on behalf of the ~~Lender Parties~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. Upon the acceptance of its appointment as Administrative Agent hereunder or under any other Loan Document by a successor, such successor shall succeed to and become vested with all the rights, powers, ~~privileges, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under any other Loan Document. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s 's resignation ~~hereunder~~hereunder and under any other Loan Document, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or under any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct Loan Document or ~~indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender~~thereunder.

Appears in 1 contract

Samples: Credit Agreement (Capital Trust Inc)

The Administrative Agent. Section 8.01 Administrative Agent's Appointment as Attorney-in-Fact, Etc. (a) Each ~~of the Lender Parties~~ Grantor hereby irrevocably constitutes and appoints the Administrative Agent and any officer or agent thereof, with full power of substitution, as its ~~agent hereunder~~ true and ~~under~~ lawful attorney-in-fact with full irrevocable power and authority in the ~~other Loan Documents~~ place and ~~authorizes~~ stead of such Grantor and in the ~~Administrative Agent to take~~ name of such ~~actions on~~ Grantor or in its ~~behalf~~own name, ~~including execution~~ for the purpose of ~~the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by~~ carrying out the terms of this Agreement, to take any and all reasonably appropriate action and to execute any and all documents and instruments which may be reasonably necessary or desirable to accomplish the ~~Loan Documents~~purposes of this Agreement, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agentand, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of the Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without without limiting the generality of the foregoing, each Grantor hereby gives the Administrative Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following: (ai) unless being disputed under Section 9.03(a) of the Credit Agreement, pay or discharge taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof; (ii) execute, in connection with any sale provided for in Section 7.04 or Section 7.05, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and (A) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Administrative Agent or as the Administrative Agent shall ~~not be subject~~ direct; (B) take possession of and indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Account, Instrument, General Intangible, Chattel Paper or Payment Intangible or with respect to any ~~fiduciary~~ other Collateral, and to file any claim or to take any other ~~implied duties, regardless~~ action or proceeding in any court of ~~whether a Default has occurred and is continuing; (b)~~ law or equity or otherwise deemed appropriate by the Administrative Agent ~~shall not have~~ for the purpose of collecting any ~~duty~~ all such moneys due under any Account, Instrument or General Intangible or with respect to ~~take~~ any ~~discretionary~~ other Collateral whenever payable; (C) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (D) sign and indorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (E) receive, change the address for delivery, open and dispose of mail addressed to any Grantor, and to execute, assign and indorse negotiable and other instruments for the payment of money, documents of title or other evidences of payment, shipment or storage for any form of Collateral on behalf of and in the name of any Grantor; (F) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (G) defend any suit, action or ~~exercise~~ proceeding brought against such Grantor with respect to any ~~discretionary powers~~Collateral; (H) settle, ~~except discretionary rights and powers expressly contemplated by the Loan Documents that~~ compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as 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)~~may deem appropriate; and (cI) ~~except~~ generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as ~~expressly set forth~~ fully and completely as though the Administrative Agent were the absolute owner thereof for all purposes, and do, at the Administrative Agent's option and such Grantor's expense, at any time, or from time to time, all acts and things which the Administrative Agent deems necessary to protect, preserve or realize upon the Collateral and the Administrative Agent's and the other Secured Parties' security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do. Anything in this Section 8.01(a) to the ~~Loan Documents~~contrary notwithstanding, the Administrative Agent agrees that it will not exercise any rights under the power of attorney provided for in this Section 8.01(a) unless an Event of Default shall ~~not~~ have occurred and be continuing. (b) If any ~~duty~~ Grantor fails to ~~disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower~~ perform or ~~any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or~~ comply with any of its ~~Affiliates in~~ agreements contained herein within the applicable grace periods, the Administrative Agent, at its option, but without any ~~capacity.~~ obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement. (c) The expenses of the Administrative Agent ~~shall not be liable for any action taken or not taken by it~~ incurred in connection 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~~ actions undertaken as provided in this Section ~~9.02) or in~~ 8.01, together with interest thereon at the ~~absence~~ Post-Default Rate from the date of ~~its own gross negligence or willful misconduct. The~~ payment by the Administrative Agent to the date reimbursed by the relevant Grantor, shall be ~~deemed not to have knowledge of any Default unless and until written notice thereof is given~~ payable by such Grantor to the Administrative Agent by the Borrower Representative or a Lender Party, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality, validity, enforceability, effectiveness, adequacy or genuineness of any Loan Document or any other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; or (vii) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication believed by it to be genuine and correct, and to have been authorized, signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made or authorized by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Company (if such successor is not a Lender). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company. 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, obligations and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 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. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; demand. (d) ~~it will keep~~ Each Grantor hereby ratifies all ~~Reports confidential~~ that said attorneys shall lawfully do or cause to be done by virtue and ~~strictly for its internal use~~in compliance hereof. All powers, authorizations and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision agencies contained in this ~~Agreement, it will pay~~ Agreement are coupled with an interest and ~~protect,~~ are irrevocable until this Agreement is terminated and ~~indemnify, defend, and hold~~ the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lendersecurity interests created hereby are released.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Petrohawk Energy Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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. In addition, to the extent required under the laws of any jurisdiction other than the United States, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute and enforce any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and the Borrower shall not have rights as a third party beneficiary of any of such provisions. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings, the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary or believed by the Administrative Agent in good faith to be necessary under the circumstances as provided in Section 2.05(j) or Section 9.02); ) and for which it is indemnified to its satisfaction by the Lenders with regard to any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ Holdings, the Borrower or any ~~of the Subsidiaries~~ Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or any of 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 2.05(j) or Section 9.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~with any Loan Document;~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document;~~ Document or the occurrence of any Default, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or ~~document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ document or (~~vii~~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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or ~~communication~~ intranet website posting or other distribution) believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such ~~sub-agent~~ subagent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~by notifying~~ upon notice to the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a successor ~~with~~ Administrative Agent reasonably acceptable to the ~~consent~~ Borrower, which acceptance shall not be unreasonably withheld or delayed (provided that the Borrower’s approval shall not be required if an Event of ~~the Company~~ Default under Section 8.01(h), (~~if such successor is not a Lender)~~i) or (j) then exists. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 15 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent~~Agent reasonable acceptable to the Borrower, which acceptance shall not be unreasonably withheld or delayed (provided that the Borrower’s approval shall not be required if an Event of Default then exists) that shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from all its duties and obligations ~~hereunder~~under the Loan Documents. If no successor agent has accepted appointment as Administrative Agent by the date that is 30 days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective, and the Lenders shall assume and perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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 the retiring Administrative Agent was acting as Administrative Agent. Each Lender ~~Party~~ and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or any of their Related Parties 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 ~~Party~~ and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or any of their Related Parties 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. ~~Each Lender Party hereby agrees that (a) it has requested a copy~~ Notwithstanding anything herein to the contrary, none of ~~each Report prepared by~~ the Syndication Agent, Joint Bookrunners or Co-Lead Arrangers listed on ~~behalf of~~ the cover page hereof shall have any powers, duties or responsibilities under any Loan Document, except in its capacity, as applicable, as the Administrative Agent~~; (b) the Administrative Agent (i) makes no representation~~ , a Lender or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lenderan Issuing Bank hereunder.

Appears in 1 contract

Samples: Credit Agreement (Burger King Holdings Inc)

Appears in 1 contract

Samples: Credit Agreement (Seagate Technology Malaysia Holding Co Cayman Islands)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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~~10.02); , and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of 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~~10.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document;~~ herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein or therein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or ~~document;~~ document (~~vi)~~ including, for the ~~creation~~avoidance of doubt, ~~perfection~~ in connection with the Administrative Agent’s reliance on any Electronic Signature transmitted by telecopy, emailed pdf. or ~~priority~~ any other electronic means that reproduces an image of ~~Liens on the Collateral or the existence of the Collateral;~~ an actual executed signature page), or (~~vii~~v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~sub-~~sub agents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-~~sub agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~sub-~~sub agent and to the Related Parties of the Administrative Agent and any such ~~sub-~~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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Lenders and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right to appoint a successor~~ right, with the consent of the ~~Company~~ Borrower (~~if such successor is~~ not to be unreasonably withheld or delayed), to appoint a ~~Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial bank~~ Lender with an office in New York, New York or an Affiliate of ~~any such commercial bank~~a Lender (in each case, ~~which shall be reasonably satisfactory to the Company~~other than a Disqualified Lender). 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 10.03 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent, the Joint Bookrunners, the Joint Lead Arrangers, the Syndication Agent or any other Lender ~~Party~~ and their respective Related Parties 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Joint Bookrunners, the Joint Lead Arrangers, the Syndication Agent or any other Lender ~~Party~~ and their respective Related Parties 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as Notwithstanding anything herein to the ~~completeness or accuracy~~ contrary, the Joint Bookrunners, the Joint Lead Arrangers, the Syndication Agent and the Co-Documentation Agents named on the cover page of ~~any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii)~~ this Agreement shall not ~~be liable for~~ have any ~~information contained in any Report; (c) the Reports are not comprehensive audits~~ duties or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in liabilities under this Agreement, ~~it will pay and protect~~except in their capacity, ~~and indemnify~~if any, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as ~~the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender~~Lenders.

Appears in 1 contract

Samples: Credit Agreement (Cars.com Inc.)

The Administrative Agent. 7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc. (a) Each ~~of the Lender Parties~~ Grantor hereby irrevocably constitutes and appoints the Administrative Agent and any officer or agent thereof, with full power of substitution, as its ~~agent hereunder~~ true and ~~under~~ lawful attorney-in-fact with full irrevocable power and authority in the ~~other Loan Documents~~ place and ~~authorizes~~ stead of such Grantor and in the ~~Administrative Agent to take~~ name of such ~~actions on~~ Grantor or in its ~~behalf~~own name, ~~including execution~~ for the purpose of ~~the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by~~ carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the ~~Loan Documents~~purposes of this Agreement, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agentand, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of the Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without without limiting the generality of the foregoing, each Grantor hereby gives the Administrative Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following: (ai) in the name of such Grantor or its own name, or otherwise, take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable or Contract or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Administrative Agent for the purpose of collecting any and all such moneys due under any Receivable or Contract or with respect to any other Collateral whenever payable; (ii) in the case of any Intellectual Property, execute and deliver, and have recorded, any and all agreements, instruments, documents and papers as the Administrative Agent may reasonably request to evidence the Administrative Agent' and the Lenders' security interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby; (iii) pay or discharge taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof; (iv) execute, in connection with any sale provided for in Section 6.6, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and (1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Administrative Agent or as the Administrative Agent shall ~~not be subject~~ direct; (2) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (3) sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (5) defend any suit, action or proceeding brought against such Grantor with respect to any ~~fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing~~Collateral; (b6) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Administrative Agent may deem appropriate; (7) assign any Copyright, Patent or Trademark (along with the goodwill of the business to which any such Copyright, Patent or Trademark pertains), throughout the world for such term or terms, on such conditions, and in such manner, as the Administrative Agent shall ~~not have~~ in its sole discretion determine; and (8) generally, sell, transfer, pledge and make any ~~duty~~ agreement with respect to ~~take~~ or otherwise deal with any ~~discretionary action or exercise any discretionary powers, except discretionary rights~~ of the Collateral as fully and ~~powers expressly contemplated by the Loan Documents that~~ completely as though the Administrative Agent ~~is required~~ were the absolute owner thereof for all purposes, and do, at the Administrative Agent's option and such Grantor's expense, at any time, or from time to ~~exercise~~ time, all acts and things which the Administrative Agent deems necessary to protect, preserve or realize upon the Collateral and the Administrative Agent's and the Lenders' security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do. Anything in ~~writing as directed by~~ this Section 7.1 to 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); and (c) except as expressly set forth in the Loan Documentscontrary notwithstanding, the Administrative Agent agrees that it will not exercise any rights under the power of attorney provided for in this Section 7.1 unless an Event of Default shall ~~not~~ have occurred and be continuing. (b) If any ~~duty~~ Grantor fails to ~~disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower~~ perform or ~~any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or~~ comply with any of its ~~Affiliates in~~ agreements contained herein, the Administrative Agent, at its option, but without any ~~capacity.~~ obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement. (c) The expenses of the Administrative Agent ~~shall not be liable for any action taken or not taken by it~~ incurred in connection 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~~ actions undertaken as provided in this Section ~~9.02~~7.1, together with interest thereon at a rate per annum equal to the rate per annum at which interest would then be payable on Revolving Loans that are Base Rate Loans (which rate shall increase to the rate applicable to such Loans that are past due for periods after the date that is 5 days after demand for payment has been made upon the Borrower by the Administrative Agent) ~~or in~~ under the ~~absence~~ Credit Agreement, from the date of ~~its own gross negligence or willful misconduct. The~~ payment by the Administrative Agent to the date reimbursed by the relevant Grantor, shall be ~~deemed not to have knowledge of any Default unless and until written notice thereof is given~~ payable by such Grantor to the Administrative Agent by the Borrower Representative or a Lender Party, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality, validity, enforceability, effectiveness, adequacy or genuineness of any Loan Document or any other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; or (vii) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication believed by it to be genuine and correct, and to have been authorized, signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made or authorized by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Company (if such successor is not a Lender). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company. 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, obligations and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 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. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; demand. (d) ~~it will keep~~ Each Grantor hereby ratifies all ~~Reports confidential~~ that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision agencies contained in this ~~Agreement, it will pay~~ Agreement are coupled with an interest and ~~protect,~~ are irrevocable until this Agreement is terminated and ~~indemnify, defend, and hold~~ the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lendersecurity interests created hereby are released.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Appleton Papers Inc/Wi)

The Administrative Agent. 7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc. (a) Each ~~of the Lender Parties~~ Grantor hereby irrevocably constitutes and appoints the Administrative Agent and any officer or agent thereof, with full power of substitution, as its ~~agent hereunder~~ true and ~~under~~ lawful attorney-in-fact with full irrevocable power and authority in the ~~other Loan Documents~~ place and ~~authorizes~~ stead of such Grantor and in the ~~Administrative Agent to take~~ name of such ~~actions on~~ Grantor or in its ~~behalf~~own name, ~~including execution~~ for the purpose of ~~the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by~~ carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be reasonably necessary or desirable to accomplish the ~~Loan Documents~~purposes of this Agreement, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agentand, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of the Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without without limiting the generality of the foregoing, each Grantor hereby gives the Administrative Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following: (ai) in the name of such Grantor or its own name, or otherwise, take possession of and indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Administrative Agent for the purpose of collecting any and all such moneys due under any Receivable or with respect to any other Collateral whenever payable; (ii) in the case of any Intellectual Property, execute and deliver, and have recorded, any and all agreements, instruments, documents and papers as the Administrative Agent may request to evidence the Administrative Agent's and the Lenders' security interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby; (iii) pay or discharge taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof; (iv) execute, in connection with any sale provided for in Section 6.6 or 6.7, any indorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and (1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Administrative Agent or as the Administrative Agent shall ~~not be subject~~ direct; (2) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (3) sign and indorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (5) defend any suit, action or proceeding brought against such Grantor with respect to any ~~fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing~~Collateral; (b6) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Administrative Agent may deem appropriate; (7) assign any Copyright, Patent or Trademark (along with the goodwill of the business to which any such Copyright, Patent or Trademark pertains), throughout the world for such term or terms, on such conditions, and in such manner, as the Administrative Agent shall ~~not have~~ in its sole discretion determine; and (8) generally, sell, transfer, pledge and make any ~~duty~~ agreement with respect to ~~take~~ or otherwise deal with any ~~discretionary action or exercise any discretionary powers, except discretionary rights~~ of the Collateral as fully and ~~powers expressly contemplated by the Loan Documents that~~ completely as though the Administrative Agent ~~is required~~ were the absolute owner thereof for all purposes, and do, at the Administrative Agent's option and such Grantor's expense, at any time, or from time to ~~exercise~~ time, all acts and things which the Administrative Agent deems necessary to protect, preserve or realize upon the Collateral and the Administrative Agent's and the Lenders' security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do. Anything in ~~writing as directed by~~ this Section 7.1 (a) to 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); and (c) except as expressly set forth in the Loan Documentscontrary notwithstanding, the Administrative Agent agrees that it will not exercise any rights under the power of attorney provided for in this Section 7.1(a) unless an Event of Default shall ~~not~~ have occurred and be continuing. (b) If any ~~duty~~ Grantor fails to ~~disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower~~ perform or ~~any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or~~ comply with any of its ~~Affiliates in~~ agreements contained herein, the Administrative Agent, at its option, but without any ~~capacity.~~ obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement. (c) The reasonable out-of-pocket expenses of the Administrative Agent ~~shall not be liable for any action taken or not taken by it~~ incurred in connection 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~~ actions undertaken as provided in this Section ~~9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent~~ 7.1 shall be ~~deemed not to have knowledge of any Default unless and until written notice thereof is given~~ payable by such Grantor to the Administrative Agent by the Borrower Representative or a Lender Party, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; (ii) the contents within 10 days of any certificate, report or other document delivered hereunder or in connection with any Loan Document; (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality, validity, enforceability, effectiveness, adequacy or genuineness of any Loan Document or any other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; or (vii) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication believed by it to be genuine and correct, and to have been authorized, signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made or authorized by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Company (if such successor is not a Lender). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company. 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, obligations and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 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. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; demand. (d) ~~it will keep~~ Each Grantor hereby ratifies all ~~Reports confidential~~ that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision agencies contained in this ~~Agreement, it will pay~~ Agreement are coupled with an interest and ~~protect,~~ are irrevocable until this Agreement is terminated and ~~indemnify, defend, and hold~~ the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lendersecurity interests created hereby are released.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Clearwire Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Bank hereby irrevocably appoints ~~the Administrative Agent~~ Xxxxxx Xxxxxxx Senior Funding, Inc. as its administrative agent ~~hereunder and under the other Loan Documents~~ and authorizes ~~the Administrative Agent~~ Xxxxxx Xxxxxxx Senior Funding, Inc. 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, and Xxxxxx Xxxxxxx Senior Funding, Inc. hereby accepts such appointment. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the ~~Collateral;~~ Collateral or (~~vii~~vi) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the right ~~to appoint a successor~~ (with the consent of the ~~Company~~ Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower shall be required if ~~such successor~~ a Default has occurred and is ~~not~~ continuing) to appoint a ~~Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Bank, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article VIII 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 Syndication Agent or 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 ~~Party~~ hereby ~~agrees that~~ makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agent, as applicable, as it makes with respect to the Administrative 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 (aexcept as otherwise set forth herein in case of the Administrative Agent) ~~it has requested a copy of each Report prepared by or~~ authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the ~~Administrative Agent; (b)~~ Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders hereby authorize the Administrative Agent to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) ~~makes no representation~~ as described in Section 9.02(d); (ii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; (iii) if approved, authorized or ~~warranty~~ratified in writing by the Required Lenders, ~~express~~ unless such release is required to be approved by all of the Lenders hereunder; and (iv) upon the occurrence of a Collateral Release Date in accordance with the terms and conditions of Section 5.09(f). Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or ~~implied~~items of Collateral pursuant hereto. The Borrower, on its behalf and on behalf of its Subsidiaries, and each Lender, on its behalf and on the behalf of its affiliated Secured Parties, hereby irrevocably constitute the Administrative Agent as the holder of an irrevocable power of attorney (fondé de pouvoir within the meaning of Article 2692 of the Civil Code of Québec) in order to hold hypothecs and security granted by the Borrower or any Subsidiary on property pursuant to the laws of the Province of Quebec to secure obligations of the Borrower or any Subsidiary under any bond, debenture or similar title of indebtedness issued by the Borrower or any Subsidiary in connection with this Agreement, and agree that the Administrative Agent may act as the bondholder and mandatary with respect to any bond, debenture or similar title of indebtedness that may be issued by the Borrower or any Subsidiary and pledged in favor of the Secured Parties in connection with this Agreement. Notwithstanding the provisions of Section 32 of the An Act respecting the special powers of legal persons (Quebec), Xxxxxx Xxxxxxx Senior Funding, Inc., as Administrative Agent may acquire and be the holder of any bond issued by the Borrower or any Subsidiary in connection with this Agreement (i.e., the fondé de pouvoir may acquire and hold the first bond issued under any deed of hypothec by the Borrower or any Subsidiary). The Administrative Agent is hereby authorized to execute and deliver any documents necessary or appropriate to create and perfect the rights of pledge for the benefit of the Secured Parties including a right of pledge with respect to the ~~completeness or accuracy~~ entitlements to profits, the balance left after winding up and the voting rights of the Borrower as ultimate parent of any ~~Report~~ subsidiary of the Borrower which is organized under the laws of the Netherlands and the Equity Interests of which are pledged in connection herewith (a “Dutch Pledge”). Without prejudice to the provisions of this Agreement and the other Loan Documents, the parties hereto acknowledge and agree with the creation of parallel debt obligations of the Borrower or any relevant Subsidiary as will be described in any Dutch Pledge (the “Parallel Debt”), including that any payment received by the Administrative Agent in respect of the ~~information contained therein~~ Parallel Debt will - conditionally upon such payment not subsequently being avoided or reduced by virtue of any ~~inaccuracy~~ provisions or ~~omission contained in or~~ enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application - be deemed a ~~Report~~ satisfaction of a pro rata portion of the corresponding amounts of the Obligations, and any payment to the Secured Parties in satisfaction of the Obligations shall - conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application - be deemed as satisfaction of the corresponding amount of the Parallel Debt. The parties hereto acknowledge and agree that, for purposes of a Dutch Pledge, any resignation by the Administrative Agent is not effective until its rights under the Parallel Debt are assigned to the successor Administrative Agent. The parties hereto acknowledge and agree for the purposes of taking and ensuring the continuing validity of German law governed pledges (Pfandrechte) with the creation of parallel debt obligations of the Borrower as will be further described in a separate German law governed parallel debt undertaking. The Administrative Agent shall (i) hold such parallel debt undertaking as fiduciary agent (Treuhaender) and (ii) ~~shall not be liable~~ administer and hold as fiduciary agent (Treuhaender) any pledge created under a German law governed Collateral Document which is created in favor of any Secured Party or transferred to any Secured Party due to its accessory nature (Akzessorietaet), in each case in its own name and for ~~any information contained in any Report; (c)~~ the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations account of the ~~Borrowers’ personnel~~ Secured Parties. Each Lender, on its own behalf and ~~that~~ on behalf of its affiliated Secured Parties, hereby authorizes the Administrative Agent ~~undertakes no obligation~~ to ~~update~~enter as its agent in its name and on its behalf into any German law governed Collateral Document, ~~correct or supplement the Reports; (d) it will keep all Reports confidential~~ to accept as its agent in its name and ~~strictly for~~ on its ~~internal use~~behalf any pledge under such Collateral Document and to agree to and execute as agent in its name and on its behalf any amendments, supplements and ~~it will not share the Report with~~ other alterations to any ~~Borrower or~~ such Collateral Document and to release any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent such Collateral Document and any pledge created under any such ~~other Person preparing a Report harmless from and against,~~ Collateral Document in accordance with the ~~claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as~~ provisions herein and/or the ~~direct or indirect result of~~ provisions in any ~~third parties who might obtain all or part of any Report through the indemnifying Lender~~such Collateral Document.

Appears in 1 contract

Samples: Credit Agreement (Endo Health Solutions Inc.)

Appears in 1 contract

Samples: Credit Agreement (Virtusa Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Loan Parties or any Subsidiary of ~~the Subsidiaries~~ a Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any ~~Borrower~~ Loan Party or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own bad faith, gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower Representative or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; , or (~~vii~~vi) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, with the Company’s consent (not to be unreasonably withheld or delayed), to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a commercial bank or an Affiliate of any such commercial bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, ~~Sections~~ Section 2.17(d) 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender ~~Party~~ hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the ~~Borrowers~~ Loan Parties and will rely significantly upon the ~~Borrowers~~Loan Parties’ books and records, as well as on representations of the ~~Borrowers~~Loan Parties’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, ~~and it will~~ not share the Report with ~~any Borrower~~ or any other Person except as otherwise permitted pursuant to this ~~Agreement~~Agreement or required by applicable law, rule or regulation; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. Each Lender, Lead Arranger or Affiliate of a Lender or Lead Arranger that enters into an agreement to provide Banking Services or a Swap Agreement with any Loan Party and intends for the Banking Services Obligations or the Swap Obligations, as applicable, resulting therefrom to constitute Secured Obligations, by delivery of a notice to the Administrative Agent pursuant to the requirements set forth in the definition of “Secured Obligations”, agrees to be bound by Section 2.18(b) and this Article VIII. Each such Lender, Lead Arranger or Affiliate of a Lender or Lead Arranger shall indemnify and hold harmless the Administrative Agent and its Related Parties, to the extent not reimbursed by the Loan Parties, against all claims, liabilities, obligations, losses, damages, penalties, judgments, proceedings, interest, costs and expenses of any kind (including remedial response costs, reasonable attorneys’ fees and all costs, expenses or advances that the Administrative Agent may incur during a Default, or during the pendency of a bankruptcy or insolvency proceeding of any Loan Party) at any time (including after (a) the Commitments have expired or terminated and the principal of and interest on each Loan and all fees, expenses and other amounts payable under any Loan Document have been paid in full and all Letters of Credit have expired, been cash collateralized, backstopped or terminated and all LC Disbursements shall have been reimbursed or (b) the replacement of the Administrative Agent or any Lender) that may be incurred by or asserted against the Administrative Agent or any of its Related Parties in connection with, or in any way relating to, such Lender’s, such Lead Arranger’s or such Affiliate’s applicable Banking Services Obligations or Swap Obligations; provided that such indemnity shall not be available to the extent such claims, liabilities, obligations, losses, damages, penalties, judgments, proceedings, interest, costs and expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the bad faith, gross negligence or willful misconduct of the Administrative Agent or its Related Parties. The Joint Bookrunners, Lead Arrangers, the Co-Documentation Agents and the Syndication Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. To the fullest extent permitted by law, each Lender hereby waives and releases any claims that it may have against the Joint Bookrunners, Lead Arrangers, the Co-Documentation Agents and the Syndication Agents in their capacities as such with respect to any breach or alleged breach of agency or fiduciary duty to such Lender in connection with any aspect of any transaction contemplated hereby.

Appears in 1 contract

Samples: Credit Agreement (Interline Brands, Inc./De)

Appears in 1 contract

Samples: Credit Agreement (Visteon Corp)

The Administrative Agent. Each ~~of the~~ Lender ~~Parties~~ hereby (a) irrevocably appoints First Tennessee Bank National Association as the Administrative Agent ~~as its agent hereunder~~ for such Lender and the other Lenders under this Agreement, the Notes and the other Loan ~~Documents~~ Documents, and (b) irrevocably authorizes the Administrative Agent to take such ~~actions~~ action on its ~~behalf~~behalf under the provisions of this Agreement, ~~including execution of~~ the Notes and the other Loan ~~Documents,~~ Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement, the Notes and the other Loan Documents, together with such ~~actions and~~ other powers as are reasonably incidental thereto. The ~~bank serving~~ Administrative Agent shall, among other things, take such actions as the Administrative Agent ~~hereunder shall have~~ is authorized to take pursuant to this Agreement, the ~~same rights~~ Notes and ~~powers~~ the other Loan Documents. As to any matters not expressly provided for in ~~its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent~~this Agreement, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of the Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent ~~hereunder. The~~ may, but shall not be required to, exercise any discretion or take any action; however, the Administrative Agent shall ~~not~~ be required to act or to refrain from acting upon the written instructions of Requisite Lenders if the Administrative Agent shall be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of so acting or refraining from acting. Notwithstanding anything to the contrary herein, the Administrative Agent shall have no duties, responsibilities or fiduciary relationships with any ~~duties or obligations~~ Lender except those expressly set forth in this Agreement, the ~~Loan Documents. Without limiting~~ Notes and the ~~generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or~~ other implied duties, regardless of whether a Default has occurred and is continuing; (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); and (c) except as expressly set forth in the Loan Documents, ~~the Administrative Agent shall not have any duty to disclose~~and no implied covenants, ~~and shall not be liable for the failure to disclose~~responsibilities, ~~any information relating to any Borrower~~ duties, obligations or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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 liabilities shall be ~~necessary under~~ read into this Agreement, the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower Representative or a Lender Party, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality, validity, enforceability, effectiveness, adequacy or genuineness of any Loan Document or any other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral Notes or the ~~existence of the Collateral;~~ other Loan Documents or ~~(vii) 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~~ otherwise exist against the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication believed by it to be genuine and correct, and to have been authorized, signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made or authorized by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Company (if such successor is not a Lender). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company. 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, obligations and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 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. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

Appears in 1 contract

Samples: Credit Agreement (Goodys Family Clothing Inc /Tn)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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);~~ Lenders, and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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)~~ or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document;~~ herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein or therein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or ~~communication~~ intranet website posting or other distribution) believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. ~~Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the~~ The Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right to appoint a successor~~ right, with the consent of the ~~Company~~ Borrower not to be unreasonably withheld (or, if ~~such successor~~ an Event of Default has occurred and is ~~not~~ continuing in consultation with the Borrower), to appoint a ~~Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent’s resignation shall nonetheless become effective except that in the case of any collateral security held by the Administrative Agent ~~may,~~ on behalf of the Lenders or the Issuing Banks under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and (2) the Required Lenders shall perform the duties of the Administrative Agent (and all payments and communications provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender ~~Parties,~~ directly) until such time as the Required Lenders appoint a successor ~~Administrative Agent, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company~~agent as provided for above in this paragraph. 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, obligations~~ privileges and duties of the retiring (or retired) Administrative ~~Agent,~~ Agent and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder (if not already discharged therefrom as provided above in this paragraph). The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and Section 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. Each Lender ~~Party acknowledges~~ and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility, (ii) in participating as a Lender, it is engaged in making, acquiring or holding commercial loans and in providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, in each case in the ordinary course of business, and not for the purpose of investing in the general performance or operations of the Borrower, or for the purpose of purchasing, acquiring or holding any other type of financial instrument such as a security (and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing, such as a claim under the federal or state securities law), (iii) it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Arranger, or any other Lender ~~Party~~ or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder and (iv) it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender ~~Party~~ and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Arranger or any other Lender ~~Party~~ or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) 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. Except as otherwise provided in Section 9.02(b) with respect to this Agreement, the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents, provided that, without the prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (except as provided herein or in the Security Documents) release all or substantially all of the Collateral or otherwise terminate all or substantially all of the Liens under any Security Document providing for collateral security, agree to additional obligations being secured by all or substantially all of such collateral security, alter the relative priorities of the obligations entitled to the benefits of the Liens created under the Security Documents with respect to all or substantially all of the Collateral, except that no such consent shall be required, and the Administrative Agent is hereby authorized, to release any Lien covering property that is the subject of either a disposition of property permitted hereunder or a disposition to which the Required Lenders have consented. Each Lender ~~Party~~ and Issuing Bank hereby agrees that (ax) it if the Administrative Agent notifies such Lender or Issuing Bank that the Administrative Agent has ~~requested~~ determined in its sole discretion that any funds received by such Lender or Issuing Bank from the Administrative Agent or any of its Affiliates (whether as a ~~copy~~ payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender or Issuing Bank (whether or not known to such Lender or Issuing Bank), and demands the return of such Payment (or a portion thereof), such Lender or Issuing Bank shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each ~~Report prepared~~ day from and including the date such Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on ~~behalf~~ interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender or Issuing Bank shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative ~~Agent;~~ Agent to any Lender or Issuing Bank pursuant to the foregoing shall be conclusive, absent manifest error. Each Lender and Issuing Bank hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (bx) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (~~i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report~~ or any of ~~the information contained therein~~ its Affiliates) with respect to such Payment (a “Payment Notice”) or ~~any inaccuracy~~ (y) that was not preceded or ~~omission contained~~ accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender and Issuing Bank agrees that, in each such case, or ~~relating to~~ if it otherwise becomes aware a ~~Report and~~ Payment (iior portion thereof) may have been sent in error, such Lender or Issuing Bank shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that promptly notify the Administrative Agent ~~undertakes~~ of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no ~~obligation~~ event later than one Business Day thereafter, return to ~~update~~the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, ~~correct~~ together with interest thereon in respect of each day from and including the date such Payment (or ~~supplement~~ portion thereof) was received by such Lender or Issuing Bank to the ~~Reports;~~ date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. The Borrower hereby agrees that (dx) ~~it will keep~~ in the event an erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Bank that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all ~~Reports confidential~~ the rights of such Lender or Issuing Bank with respect to such amount and ~~strictly for its internal use~~(y) an erroneous Payment shall not pay, ~~and it will not share~~ prepay, repay, discharge or otherwise satisfy any obligations owed by the ~~Report with any~~ Borrower or any other ~~Person except as otherwise permitted pursuant~~ Obligor, except, in each case, to ~~this Agreement; and (e) without limiting~~ the ~~generality of any other indemnification provision contained in this Agreement, it will pay and protect~~extent such Payment is, and ~~indemnify~~solely with respect to the amount of such Payment that is, ~~defend, and hold~~ comprised of funds received by the Administrative Agent ~~and~~ from the Borrower or any other Obligor for the purpose of making such ~~other Person preparing~~ Payment. Each party’s obligations pursuant to the foregoing shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a ~~Report harmless from and against~~Lender, an Issuing Bank, the ~~claims~~termination of the Commitments or the repayment, ~~actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as~~ satisfaction or discharge of all obligations under any Loan Document. None of the ~~direct~~ Joint Lead Arrangers or ~~indirect result of~~ the Syndication Agents shall have any ~~third parties who might obtain all or part of any Report through the indemnifying Lender~~responsibility under this Agreement.

Appears in 1 contract

Samples: Senior Secured Credit Agreement (Franklin BSP Capital Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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~~10.02); , and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of 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~~10.02) or in the absence of its own gross 105 negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document;~~ herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein or therein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or ~~document;~~ document (~~vi)~~ including, for the ~~creation~~avoidance of doubt, ~~perfection~~ in connection with the Administrative Agent’s reliance on any Electronic Signature transmitted by telecopy, emailed pdf. or ~~priority~~ any other electronic means that reproduces an image of ~~Liens on the Collateral or the existence of the Collateral;~~ an actual executed signature page), or (~~vii~~v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~sub-~~sub agents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-~~sub agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~sub-~~sub agent and to the Related Parties of the Administrative Agent and any such ~~sub-~~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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Lenders and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right to appoint a successor~~ right, with the consent of the ~~Company~~ Borrower (~~if such successor is~~ not to be unreasonably withheld or delayed), to appoint a ~~Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Lxxxxxx, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial bank~~ Lender with an office in New York, New York or an Affiliate of ~~any such commercial bank~~a Lender (in each case, ~~which shall be reasonably satisfactory to the Company~~other than a Disqualified Lxxxxx). 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 10.03 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent, the Joint Bookrunners, the Joint Lead Arrangers, the Syndication Agent or any other Lender ~~Party~~ and their respective Related Parties 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Joint Bookrunners, the Joint Lead Arrangers, the Syndication Agent or any other Lender ~~Party~~ and their respective 106 Related Parties 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as Notwithstanding anything herein to the ~~completeness or accuracy~~ contrary, the Joint Bookrunners, the Joint Lead Arrangers, the Syndication Agent and the Co-Documentation Agents named on the cover page of ~~any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii)~~ this Agreement shall not ~~be liable for~~ have any ~~information contained in any Report; (c) the Reports are not comprehensive audits~~ duties or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in liabilities under this Agreement, ~~it will pay and protect~~except in their capacity, ~~and indemnify~~if any, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as ~~the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender~~Lenders.

Appears in 1 contract

Samples: Credit Agreement (Cars.com Inc.)

Appears in 1 contract

Samples: Credit Agreement (Escalade Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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 this Agreement, the Collateral Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and the Borrower shall not have rights as a third party beneficiary of any of such provisions. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings, the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary or believed by the Administrative Agent in good faith to be necessary under the circumstances as provided in Section 2.04(j) or Section 9.02); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ Holdings, the Borrower or any ~~of the Subsidiaries~~ Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or any of 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 2.04(j) or Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~with any Loan Document;~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document;~~ Document or the occurrence of any Default, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or ~~document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ document or (~~vii~~v) except as contemplated by the Debt Commitment Letter, 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or ~~communication~~ intranet website posting or other distribution) believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. ~~Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the~~ The Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory~~ . If no successor Administrative Agent has been appointed pursuant to the ~~Company~~immediately preceding sentence by the 30th day after the date such notice of resignation was given by such Administrative Agent, the Administrative Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of the Administrative Agent hereunder and/or under any other Loan Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent. Any such resignation by the Administrative Agent hereunder shall also constitute its resignation as an Issuing Bank, in which case the resigning Administrative Agent (x) shall not be required to issue any further Letters of Credit hereunder and (y) shall maintain all of its rights as Issuing Bank with respect to any Letters of Credit issued by it prior to the date of such resignation. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor.~~ After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and Section 9.03 shall continue in effect for the benefit of ~~such~~ the 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 the retiring Administrative Agent was acting as Administrative Agent. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. Each Lender ~~Party~~ and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or any of their Related Parties 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 ~~Party~~ and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or any of their Related Parties 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. ~~Each Lender Party hereby agrees that (a) it has requested a copy~~ Notwithstanding anything herein to the contrary, none of ~~each Report prepared by~~ the Bookrunner, the Arranger, the Syndication Agent or the Documentation Agent listed on ~~behalf of~~ the cover page hereof shall have any powers, duties or responsibilities under any Loan Document, except in its capacity, as applicable, as the Administrative Agent~~; (b)~~ , a Lender or an Issuing Bank hereunder. Each of the Lenders hereby irrevocably authorizes the Administrative Agent ~~(i) makes no representation~~ to release any Lien on any Collateral constituting assets or ~~warranty, express~~ property being sold or ~~implied, as to the completeness~~ disposed of in compliance with this Agreement. Notwithstanding any other provision of this Agreement or ~~accuracy~~ any provision of any ~~Report or any~~ other Loan Document, each of the ~~information contained therein or any inaccuracy or omission contained in or relating to a Report~~ Arrangers, the Syndication Agent and ~~(ii) shall not be liable~~ the Documentation Agent are named as such for ~~any information contained in any Report; (c) the Reports are not comprehensive audits or examinations~~recognition purposes only, and ~~that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records~~in their respective capacities as such shall have no duties, ~~as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation~~ responsibilities or liabilities with respect to ~~update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower~~ this Agreement or any other ~~Person except~~ Loan Document. Without limitation of the foregoing, neither the Arrangers, the Syndication Agent nor the Documentation Agent in their respective capacities as ~~otherwise permitted pursuant to~~ such shall, by reason of this ~~Agreement; and (e) without limiting the generality~~ Agreement or any other Loan Document, have any fiduciary relationship in respect of any Lender, Loan Party or any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying LenderPerson.

Appears in 1 contract

Samples: First Lien Credit Agreement (Jda Software Group Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder~~ both as administrative agent and ~~under the other Loan Documents~~ collateral 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 hereof and the ~~Loan~~ other Financing Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder and under the other Financing Documents shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent,~~ Agent and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrowers~~ any Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein or in the ~~Loan~~ other Financing Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby or thereby 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); , and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for ~~the~~ any failure to disclose, any information relating to ~~any Borrower~~ the Borrowers or any of ~~the~~ their Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative~~ Borrowers or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document;~~ this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~with any Loan Document;~~ herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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. With respect to the release of Collateral, the Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any property covered by this Agreement or the other Financing Documents (i) upon termination or expiration of the Commitments, the payment and satisfaction of all obligations arising with respect to the Loans, all fees and expenses, the expiration or termination of all the Letters of Credit and the reimbursement of all LC Disbursements; or (ii) constituting property being sold or disposed of in compliance with the provisions of the Financing Documents (and the Administrative Agent may rely in good faith conclusively on any certificate stating that the property is being sold or disposed of in compliance with the provisions of the Financing Documents, without further inquiry); provided, however, that (x) the Administrative Agent shall not be required to execute any release on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair any Liens upon all interests retained, all of which shall continue to constitute part of the property covered by the Financing Documents. With respect to perfecting security interests in Collateral which, in accordance with Article 9 of the Uniform Commercial Code or any comparable provision of any Lien perfection statute in any applicable jurisdiction, can be perfected only by possession, each Lender hereby appoints each other Lender its agent for the purpose of perfecting such interest. Should any Lender (other than the Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the Administrative Agent, and, promptly upon the Administrative Agent’s request, shall deliver such Collateral to the Administrative Agent or in accordance with the Administrative Agent’s instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce this Agreement or any other Financing Document or to realize upon any Collateral for the Loans, it being understood and agreed that such rights and remedies may be exercised only by or with the approval of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent or any Lender may be the purchaser of any and all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Loans as a credit on account of the - 72 - purchase price for any collateral payable by the Agent at such sale. The Administrative Agent shall not be required to foreclose under, or otherwise exercise any rights and remedies under, any Mortgage if at the time that the Administrative Agent is required or directed to do so, (a) the Administrative Agent has not received environmental assessment reports reasonably satisfactory to it with respect to the property encumbered by such Mortgage, prepared by environmental testing firms reasonably satisfactory to it, indicating that the property encumbered by such Mortgage and the operations at such property are not in material violation of applicable Environmental Laws or (b) the Administrative Agent is not otherwise reasonably satisfied that there is no material environmental liability with respect to the applicable property or the operations at such property. In the event that a petition seeking relief under Title 11 of the United States Code or any other Federal, state or foreign bankruptcy, insolvency, liquidation or similar law is filed by or against any Borrower or any other Person obligated under the Financing Document, the Administrative Agent is authorized, to the fullest extent permitted by applicable law, to file a proof of claim on behalf of itself and the Lenders in such proceeding for the total amount of obligations owed by such Person. With respect to any such proof of claim which the Administrative Agent may file, each Lender acknowledges that without reliance on such proof of claim, such Lender shall make its own evaluation as to whether an individual proof of claim must be filed in respect of such obligations owed to such Lender and, if so, take the steps necessary to prepare and timely file such individual claim. Subject to the limitations set forth below, the Administrative Agent may, at its option, from time to time, at any time on or after a Default and for so long as the same is continuing or upon any other failure of a condition precedent to providing Loans and Letters of Credit hereunder, make such disbursements and advances (“Special Agent Advances”) which the Administrative Agent, in good faith, (a) deems necessary or desirable either to preserve or protect the Collateral or any portion thereof or (b) enhance the likelihood of, or maximize the amount of, repayment by the Borrowers and Guarantors of the Loans and other Obligations; provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (b) shall not exceed 10% of the Commitment or result in the total amount of Obligations outstanding to exceed the Commitment or (c) to pay any other amount chargeable to any Borrower or Guarantor pursuant to the terms of this Agreement or any of the other Financing Documents consisting of (i) costs, fees and expenses and (ii) payments to any Issuing Bank. Special Agent Advances shall be repayable on demand and together with all interest thereon shall constitute Obligations secured by the Collateral; provided, that if a Special Agent Advance remains outstanding for more than 60 days, the Required Lenders may revoke the Administrative Agent’s authorization to make Special Agent Advances. Any such revocation must be in writing and shall become effective prospectively upon the Agent’s receipt thereof. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the interest rate then payable on Alternate Base Rate Loans from time to time and shall be payable on demand. Without limitation of its obligations pursuant to the first sentence of Section 2.01, each Lender agrees that it shall make available to the Administrative Agent, upon the Administrative Agent’s demand, in immediately available funds, the amount equal to such Lender’s pro rata share of each such Special Agent Advance. If such funds are not made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such funds, on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Effective Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at an interest rate equal to the LIBO Rate plus 2.5% per annum. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, with the approval of the Borrowers (not to be unreasonably withheld, except that no such approval shall be required upon the occurrence and continuance of a Default), to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial bank, which shall be reasonably satisfactory to the Company~~bank with such an office. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender ~~Party hereby agrees that (a) it has requested a copy~~ acknowledges the potential conflict of interest of each ~~Report prepared by or on behalf~~ other Lender as a result of Lenders holding disproportionate interests in the ~~Administrative Agent; (b)~~ Loans, and expressly consents to and waives any claim based upon such conflict of interest. The parties hereto agree that the ~~Administrative~~ titles Co-Syndication Agent ~~(i) makes~~ and Co-Documentation Agent are honorary and confer no ~~representation or warranty~~duties upon such agents except as a Lender hereunder, ~~express or implied, as~~ provided that each Co-Syndication Agent and Co-Documentation Agent shall be entitled to the ~~completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report~~ rights and ~~(ii) shall not be liable~~ benefits specifically provided for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lenderherein.

Appears in 1 contract

Samples: Credit Agreement (Phillips Van Heusen Corp /De/)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including (in the case of the Administrative Agent) 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as the Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; , or (~~vii~~vi) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the ~~Administrative~~ applicable Agent. Subject to the appointment and acceptance of a successor ~~Administrative~~ Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, ~~privileges, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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 the Administrative Agent. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 Syndication Agent or 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 ~~Party~~ hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. Except with respect to the exercise of setoff rights of any Lender, in accordance with Section 9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or with respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (aexcept as otherwise set forth herein in case of the Administrative Agent) ~~it has requested a copy of each Report prepared by or~~ authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the ~~Administrative Agent; (b)~~ Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Holders of Secured Obligations within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Holder of Secured Obligations (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Holders of Secured Obligations upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Holders of Secured Obligations any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Holders of Secured Obligations. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) ~~makes no representation or warranty, express or implied,~~ as ~~to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained~~ described in ~~or relating to a Report and~~ Section 9.02(c); (ii) ~~shall not~~ as permitted by, but only in accordance with, the terms of the applicable Loan Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be ~~liable for~~ approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any ~~information contained~~ time, the Lenders will confirm in ~~any Report; (c)~~ writing the ~~Reports are not comprehensive audits~~ Administrative Agent’s authority to release particular types or ~~examinations~~items of Collateral pursuant hereto. The Borrower, on its behalf and on behalf of its Subsidiaries, and ~~that any Person performing any field examination will inspect only specific information regarding~~ each Lender, on its behalf and on the ~~Borrowers and will rely significantly upon~~ behalf of its affiliated Holders of Secured Obligations, hereby irrevocably constitute the ~~Borrowers’ books and records,~~ Administrative Agent as ~~well as on representations~~ the holder of an irrevocable power of attorney (fondé de pouvoir within the meaning of Article 2692 of the ~~Borrowers’ personnel~~ Civil Code of Québec) in order to hold hypothecs and security granted by the Borrower or any Subsidiary on property pursuant to the laws of the Province of Quebec to secure obligations of the Borrower or any Subsidiary under any bond, debenture or similar title of indebtedness issued by the Borrower or any Subsidiary in connection with this Agreement, and agree that the Administrative Agent ~~undertakes no obligation~~ may act as the bondholder and mandatary with respect to ~~update~~any bond, ~~correct~~ debenture or ~~supplement~~ similar title of indebtedness that may be issued by the ~~Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any~~ Borrower or any ~~other Person except as otherwise permitted pursuant to~~ Subsidiary and pledged in favor of the Holders of Secured Obligations in connection with this Agreement; . Notwithstanding the provisions of Section 32 of the An Act respecting the special powers of legal persons (Quebec), JPMorgan Chase Bank, National Association as Administrative Agent may acquire and ~~(e) without limiting~~ be the ~~generality~~ holder of any ~~other indemnification provision contained~~ bond issued by the Borrower or any Subsidiary in connection with this ~~Agreement~~Agreement (i.e., ~~it will pay and protect, and indemnify, defend,~~ the fondé de pouvoir may acquire and hold the first bond issued under any deed of hypothec by the Borrower or any Subsidiary). The Administrative Agent is hereby authorized to execute and deliver any documents necessary or appropriate to create and perfect the rights of pledge for the benefit of the Holders of Secured Obligations including a right of pledge with respect to the entitlements to profits, the balance left after winding up and the voting rights of the Borrower as ultimate parent of any subsidiary of the Borrower which is organized under the laws of the Netherlands and the Equity Interests of which are pledged in connection herewith (a “Dutch Pledge”). Without prejudice to the provisions of this Agreement and the other Loan Documents, the parties hereto acknowledge and agree with the creation of parallel debt obligations of the Borrower or any relevant Subsidiary as will be described in any Dutch Pledge (the “Parallel Debt”), including that any payment received by the Administrative Agent in respect of the Parallel Debt will — conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application — be deemed a satisfaction of a pro rata portion of the corresponding amounts of the Obligations, and any payment to the Holders of Secured Obligations in satisfaction of the Obligations shall — conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application — be deemed as satisfaction of the corresponding amount of the Parallel Debt. The parties hereto acknowledge and agree that, for purposes of a Dutch Pledge, any resignation by the Administrative Agent is not effective until its rights under the Parallel Debt are assigned to the successor Administrative Agent. The Administrative Agent shall administer any Collateral Document which is governed by German law and is a pledge (Pfandrecht) or otherwise transferred to any Holder of Secured Obligations under an accessory security right (akzessorische Sicherheit) in the name and on behalf of the Holder of Secured Obligations. In relation to any Collateral Document governed by the laws of Germany, each party hereby authorizes the Administrative Agent to accept as its representative any pledge or other ~~Person preparing a Report harmless from~~ creation of any accessory security right made to such party in relation to this Agreement and ~~against~~to agree to and execute on its behalf as its representative amendments, ~~the claims, actions, proceedings, damages, costs, expenses,~~ supplements and other ~~amounts (including reasonable attorney fees) incurred~~ alterations to any Collateral Document governed by as the ~~direct~~ laws of Germany which creates a pledge or ~~indirect result~~ any other accessory security right and to release on behalf of such party any ~~third parties who might obtain all or part~~ Collateral Document governed by the laws of ~~any Report through~~ Germany in accordance with the ~~indemnifying Lender~~provisions herein and/or the provisions in the relevant German law governed pledge agreement.

Appears in 1 contract

Samples: Credit Agreement (Dean Foods Co)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including execution of subordination agreements in respect of Subordinated Indebtedness and 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrowers~~ any Loan Party or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any ~~Borrower~~ Loan Party or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as the Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; , or (~~vii~~vi) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Borrower; provided, that such resignation shall not affect the rights of the Administrative Agent pursuant to the Parallel Debt and the Administrative Agent shall continue to hold such rights until the effective assignment thereof by the Administrative Agent to a successor agent. The Administrative Agent shall not be removed at any time or for any reason without its prior written consent. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, ~~privileges, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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 the Administrative Agent. The Administrative Agent will reasonably cooperate in assigning its rights under the Parallel Debt to any such successor agent and will reasonably cooperate in transferring all rights under the Dutch Share Pledge to such successor agent. Each Lender ~~Party~~ acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~Party also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ and based on such documents and informa-tion (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any other Loan Document or any related agreement or any document furnished hereunder or ~~thereunder~~thereunder and in deciding whether or to the extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. No Lender or Affiliate thereof identified in this Agreement as a Co-Syndication Agent, Co-Documentation Agent or Joint Lead Arranger 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 or Affiliates thereof shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender ~~Party~~ hereby makes the same acknowledgments with respect to the relevant Lenders or Affiliates thereof their respective capacities as Co-Syndication Agent, Co-Documentation Agent or Joint Lead Arranger as it makes with respect to the Administrative Agent in the preceding paragraph. Except with respect to the exercise of setoff rights of any Lender, in accordance with Section 9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against any Loan Party with respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (aexcept as otherwise set forth herein in case of the Administrative Agent) ~~it has requested a copy of each Report prepared by or~~ 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. The Administrative Agent is a “representative” of the Holders of Secured Obligations within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Holder of Secured Obligations (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Holders of Secured Obligations upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Holders of Secured Obligations any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Holders of Secured Obligations. The Holders of Secured Obligations confirm that any amount irrevocably received by the Administrative Agent in satisfaction of all or part of the Dutch Parallel Debt be deemed a satisfaction of a pro rata portion of the Corresponding Obligations. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) as described in Sections 5.10(a)(v), 6.02(l), 9.02(c) and 9.02(e); (bii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Loan Document (including a permitted transfer to a Restricted Subsidiary other than a Loan Party), or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Holders of Secured Obligations herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent ~~(i) makes no representation~~ shall not be required to execute any such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, ~~express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report~~ and (ii) such release shall not ~~be liable for any information contained~~ in any ~~Report;~~ manner discharge, affect or impair the Secured Obligations or any Liens upon (cor obligations of any Loan Party or any Restricted Subsidiary in respect of) all interests retained by any Loan Party or any Restricted Subsidiary, including (without limitation) the ~~Reports are not comprehensive audits or examinations~~proceeds of the sale, all of which shall continue to constitute part of the Collateral. The Borrower, on its behalf and on behalf of the Restricted Subsidiaries, and ~~that any Person performing any field examination will inspect only specific information regarding the Borrowers~~ each Lender, on its behalf and ~~will rely significantly upon the Borrowers’ books and records~~on behalf of its affiliated Secured Parties, ~~as well as on representations of the Borrowers’ personnel and~~ agrees that the Administrative Agent ~~undertakes no obligation~~ may determine, in its sole discretion, to ~~update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will~~ not ~~share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality~~ perfect a Lien in an asset of any ~~other indemnification provision contained~~ Loan Party if the cost and expense associated with perfecting such Lien would be excessive in ~~this Agreement~~light of the value of such asset, ~~it will pay and protect, and indemnify, defend, and hold~~ or if such asset would not provide material credit support for the ~~Administrative Agent and any such other Person preparing a Report harmless from and against,~~ benefit of the ~~claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result~~ Holders of ~~any third parties who might obtain all or part of any Report through the indemnifying Lender~~Secured Obligations.

Appears in 1 contract

Samples: Credit Agreement (Quad/Graphics, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Burger King Holdings Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Loan Parties or any Subsidiary of ~~the Subsidiaries~~ a Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any ~~Borrower~~ Loan Party or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own bad faith, gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower Representative or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; , or (~~vii~~vi) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, with the Company’s consent (not to be unreasonably withheld or delayed), to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a commercial bank or an Affiliate of any such commercial bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 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. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.Section

Appears in 1 contract

Samples: Credit Agreement (Interline Brands, Inc./De)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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~~10.02); , and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of 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~~10.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document;~~ herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein or therein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~sub-~~sub agents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-~~sub agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~sub-~~sub agent and to the Related Parties of the Administrative Agent and any such ~~sub-~~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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Lenders and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right to appoint a successor~~ right, with the consent of the ~~Company~~ Borrower (~~if such successor is~~ not to be unreasonably withheld or delayed), to appoint a ~~Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial bank~~ Lender with an office in New York, New York or an Affiliate of ~~any such commercial bank~~a Lender (in each case, ~~which shall be reasonably satisfactory to the Company~~other than a Disqualified Lender). 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 10.03 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent, the Joint Bookrunners, the Joint Lead Arrangers, the Syndication Agent or any other Lender ~~Party~~ and their respective Related Parties 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Joint Bookrunners, the Joint Lead Arrangers, the Syndication Agent or any other Lender ~~Party~~ and their respective Related Parties 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as Notwithstanding anything herein to the ~~completeness or accuracy~~ contrary, the Joint Bookrunners, the Joint Lead Arrangers, the Syndication Agent and the Co-Documentation Agents named on the cover page of ~~any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii)~~ this Agreement shall not ~~be liable for~~ have any ~~information contained in any Report; (c) the Reports are not comprehensive audits~~ duties or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in liabilities under this Agreement, ~~it will pay and protect~~except in their capacity, ~~and indemnify~~if any, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as ~~the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender~~Lenders.

Appears in 1 contract

Samples: Credit Agreement (Cars.com Inc.)

Appears in 1 contract

Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Bank hereby irrevocably appoints ~~the Administrative Agent~~ Xxxxxx Xxxxxxx Senior Funding, Inc. as its administrative agent ~~hereunder and under the other Loan Documents~~ and authorizes ~~the Administrative Agent~~ Xxxxxx Xxxxxxx Senior Funding, Inc. 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, and Xxxxxx Xxxxxxx Senior Funding, Inc. hereby accepts such appointment. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the ~~Collateral;~~ Collateral or (~~vii~~vi) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the right ~~to appoint a successor~~ (with the consent of the ~~Company~~ Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower shall be required if ~~such successor~~ a Default has occurred and is ~~not~~ continuing) to appoint a ~~Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Bank, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article VIII 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 Syndication Agent or 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 ~~Party~~ hereby ~~agrees that~~ makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agent, as applicable, as it makes with respect to the Administrative 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 (aexcept as otherwise set forth herein in case of the Administrative Agent) ~~it has requested a copy of each Report prepared by or~~ authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the ~~Administrative Agent; (b)~~ Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders hereby authorize the Administrative Agent to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) ~~makes no representation~~ as described in Section 9.02(d); (ii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or ~~warranty~~(iii) if approved, ~~express~~ authorized or ~~implied~~ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. The Borrower, on its behalf and on behalf of its Subsidiaries, and each Lender, on its behalf and on the behalf of its affiliated Secured Parties, hereby irrevocably constitute the Administrative Agent as the holder of an irrevocable power of attorney (fondé de pouvoir within the meaning of Article 2692 of the Civil Code of Québec) in order to hold hypothecs and security granted by the Borrower or any Subsidiary on property pursuant to the laws of the Province of Quebec to secure obligations of the Borrower or any Subsidiary under any bond, debenture or similar title of indebtedness issued by the Borrower or any Subsidiary in connection with this Agreement, and agree that the Administrative Agent may act as the bondholder and mandatary with respect to any bond, debenture or similar title of indebtedness that may be issued by the Borrower or any Subsidiary and pledged in favor of the Secured Parties in connection with this Agreement. Notwithstanding the provisions of Section 32 of the An Act respecting the special powers of legal persons (Quebec), Xxxxxx Xxxxxxx Senior Funding, Inc., as Administrative Agent may acquire and be the holder of any bond issued by the Borrower or any Subsidiary in connection with this Agreement (i.e., the fondé de pouvoir may acquire and hold the first bond issued under any deed of hypothec by the Borrower or any Subsidiary). The Administrative Agent is hereby authorized to execute and deliver any documents necessary or appropriate to create and perfect the rights of pledge for the benefit of the Secured Parties including a right of pledge with respect to the ~~completeness or accuracy~~ entitlements to profits, the balance left after winding up and the voting rights of the Borrower as ultimate parent of any ~~Report~~ subsidiary of the Borrower which is organized under the laws of the Netherlands and the Equity Interests of which are pledged in connection herewith (a “Dutch Pledge”). Without prejudice to the provisions of this Agreement and the other Loan Documents, the parties hereto acknowledge and agree with the creation of parallel debt obligations of the Borrower or any relevant Subsidiary as will be described in any Dutch Pledge (the “Parallel Debt”), including that any payment received by the Administrative Agent in respect of the ~~information contained therein~~ Parallel Debt will - conditionally upon such payment not subsequently being avoided or reduced by virtue of any ~~inaccuracy~~ provisions or ~~omission contained in or~~ enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application - be deemed a ~~Report~~ satisfaction of a pro rata portion of the corresponding amounts of the Obligations, and any payment to the Secured Parties in satisfaction of the Obligations shall - conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application - be deemed as satisfaction of the corresponding amount of the Parallel Debt. The parties hereto acknowledge and agree that, for purposes of a Dutch Pledge, any resignation by the Administrative Agent is not effective until its rights under the Parallel Debt are assigned to the successor Administrative Agent. The parties hereto acknowledge and agree for the purposes of taking and ensuring the continuing validity of German law governed pledges (Pfandrechte) with the creation of parallel debt obligations of the Borrower as will be further described in a separate German law governed parallel debt undertaking. The Administrative Agent shall (i) hold such parallel debt undertaking as fiduciary agent (Treuhaender) and (ii) ~~shall not be liable~~ administer and hold as fiduciary agent (Treuhaender) any pledge created under a German law governed Collateral Document which is created in favor of any Secured Party or transferred to any Secured Party due to its accessory nature (Akzessorietaet), in each case in its own name and for ~~any information contained in any Report; (c)~~ the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations account of the ~~Borrowers’ personnel~~ Secured Parties. Each Lender, on its own behalf and ~~that~~ on behalf of its affiliated Secured Parties, hereby authorizes the Administrative Agent ~~undertakes no obligation~~ to ~~update~~enter as its agent in its name and on its behalf into any German law governed Collateral Document, ~~correct or supplement the Reports; (d) it will keep all Reports confidential~~ to accept as its agent in its name and ~~strictly for~~ on its ~~internal use~~behalf any pledge under such Collateral Document and to agree to and execute as agent in its name and on its behalf any amendments, supplements and ~~it will not share the Report with~~ other alterations to any ~~Borrower or~~ such Collateral Document and to release any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent such Collateral Document and any pledge created under any such ~~other Person preparing a Report harmless from and against,~~ Collateral Document in accordance with the ~~claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as~~ provisions herein and/or the ~~direct or indirect result of~~ provisions in any ~~third parties who might obtain all or part of any Report through the indemnifying Lender~~such Collateral Document.

Appears in 1 contract

Samples: Credit Agreement (Endo Pharmaceuticals Holdings Inc)

Appears in 1 contract

Samples: Senior Secured Revolving Credit Agreement (Kaiser Aluminum Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders hereby irrevocably appoints the ~~Administrative~~ Agent as its agent ~~hereunder and under the other Loan Documents~~ 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~~hereof, together with such actions and powers as are reasonably incidental thereto. In the event of conflicting instructions or notices given to the Borrower by the Agent and any Lender, the Borrower is hereby directed and shall rely conclusively on the instruction or notice given by the Agent. The bank serving as the ~~Administrative~~ Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the ~~Administrative~~ Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the ~~Administrative~~ Agent hereunder. The ~~Administrative~~ Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the ~~Administrative~~ Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the ~~Administrative~~ Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the ~~Administrative~~ Agent is required to exercise 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); , and (c) except as expressly set forth ~~in the Loan Documents~~herein, the ~~Administrative~~ Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any ~~Borrower or any of the Subsidiaries~~ Credit Party that is communicated to or obtained by the bank serving as ~~Administrative~~ Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The ~~Administrative~~ Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the ~~Administrative~~ Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the ~~Administrative~~ Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document;~~ this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~with any Loan Document;~~ herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the ~~Administrative~~ Agent. The ~~Administrative~~ Agent agrees that, in fulfilling its duties hereunder, it will use the same standard of care it utilizes in servicing loans for its own account. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The ~~Administrative~~ Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The ~~Administrative~~ Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in good faith in accordance with the advice of any such counsel, accountants or experts. The ~~Administrative~~ Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the ~~Administrative~~ Agent. The ~~Administrative~~ Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the ~~Administrative~~ 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 ~~the Administrative~~ Agent. Subject to the appointment and acceptance of a successor ~~Administrative~~ Agent as provided in this paragraph, the ~~Administrative~~ Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower Representative~~Lead Borrower, and may be removed by the Required Lenders in the event of the Agent's gross negligence or willful misconduct. Upon any such ~~resignation~~resignation or removal, the Required Lenders shall have the ~~right~~ right, with the approval of Borrower (provided no Default has occurred and is continuing), which approval shall not be unreasonably withheld, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its ~~resignation~~resignation or is removed, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lender Parties~~Lenders, appoint a successor ~~Administrative Agent,~~ Agent which shall be ~~a commercial bank or~~ an ~~Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company~~Eligible Assignee. 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, obligations~~ privileges and duties of the retiring ~~(or retired) Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor ~~Administrative~~ Agent for its own behalf shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the ~~Administrative~~ Agent’s 's resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. The Agent shall cooperate with any successor Agent in fulfilling its duties hereunder. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the ~~Administrative~~ Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the ~~Administrative~~ Agent or any other Lender ~~Party~~ 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

Appears in 1 contract

Samples: Revolving Credit Agreement (TNP Strategic Retail Trust, Inc.)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Banks hereby irrevocably appoints ~~the Administrative Agent~~ JPMorgan Chase Bank, N.A., and its successors to serve as ~~its~~ administrative agent ~~hereunder and~~ under the ~~other~~ Loan Documents 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings, the ~~Borrowers~~ Parent Borrower or any ~~of the Subsidiaries~~ other Subsidiary or ~~other~~ Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Borrower~~ Holdings or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own bad faith, gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the ~~Borrower Representative~~ Parent Borrower, Purchasing or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~with any Loan Document;~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Parent Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~the~~ each Issuing Bank and the ~~Borrower Representative~~Parent Borrower. Upon any such resignation, the Required Lenders shall have the ~~right to appoint a successor~~ right, with the consent of the ~~Company~~ Parent Borrower, to appoint a successor (if provided, that such ~~successor~~ Parent Borrower consent (i) shall not be unreasonably withheld and (ii) shall not be required if, at the time of such appointment, an Event of Default has occurred and is ~~not a Lender~~continuing). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Parent Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Parent Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. The Joint Bookrunners, Lead Arrangers and Syndication Agent (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under this Agreement or any other documents related thereto. Each ~~Lender Party~~ of the Lenders hereby ~~agrees that~~ (a) ~~it has requested a copy of each Report prepared by or on behalf of~~ authorizes and instructs the Administrative ~~Agent;~~ Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (m) of Section 6.02 and (b) ~~the Administrative Agent (i) makes~~ agrees that it will be bound by and will take no ~~representation or warranty, express or implied, as~~ actions contrary to the ~~completeness or accuracy~~ provisions of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this such Intercreditor Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

Appears in 1 contract

Samples: Credit Agreement (J C Penney Co Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its administrative agent ~~hereunder~~ and ~~under the other Loan Documents~~ collateral 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the ~~Collateral;~~ Collateral or (~~vii~~vi) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Bank, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 Syndication Agent or Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender ~~Party~~ hereby ~~agrees that~~ makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Documentation Agent, as applicable, as it makes with respect to the Administrative 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 (aexcept as otherwise set forth herein in case of the Administrative Agent) ~~it has requested a copy of each Report prepared by or~~ authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the ~~Administrative Agent; (b)~~ Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders hereby authorize the Administrative Agent to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) ~~makes no representation~~ as described in Section 9.02(d); (ii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or ~~warranty~~(iii) if approved, ~~express~~ authorized or ~~implied~~ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. The Borrower, on its behalf and on behalf of its Subsidiaries, and each Lender, on its behalf and on the behalf of its affiliated Secured Parties, hereby irrevocably constitute the Administrative Agent as the holder of an irrevocable power of attorney (fondé de pouvoir within the meaning of Article 2692 of the Civil Code of Québec) in order to hold hypothecs and security granted by the Borrower or any Subsidiary on property pursuant to the ~~completeness~~ laws of the Province of Quebec to secure obligations of the Borrower or ~~accuracy~~ any Subsidiary under any bond, debenture or similar title of indebtedness issued by the Borrower or any Subsidiary in connection with this Agreement, and agree that the Administrative Agent may act as the bondholder and mandatary with respect to any bond, debenture or similar title of indebtedness that may be issued by the Borrower or any Subsidiary and pledged in favor of the Secured Parties in connection with this Agreement. Notwithstanding the provisions of Section 32 of the An Act respecting the special powers of legal persons (Quebec), JPMorgan Chase Bank, N.A. as Administrative Agent may acquire and be the holder of any ~~Report~~ bond issued by the Borrower or any Subsidiary in connection with this Agreement (i.e., the fondé de pouvoir may acquire and hold the first bond issued under any deed of hypothec by the Borrower or any Subsidiary). The Administrative Agent is hereby authorized to execute and deliver any documents necessary or appropriate to create and perfect the rights of pledge for the benefit of the ~~information contained therein~~ Secured Parties including a right of pledge with respect to the entitlements to profits, the balance left after winding up and the voting rights of the Borrower as ultimate parent of any subsidiary of the Borrower which is organized under the laws of the Netherlands and the Equity Interests of which are pledged in connection herewith (a “Dutch Pledge”). Without prejudice to the provisions of this Agreement and the other Loan Documents, the parties hereto acknowledge and agree with the creation of parallel debt obligations of the Borrower or any ~~inaccuracy~~ relevant Subsidiary as will be described in any Dutch Pledge (the “Parallel Debt”), including that any payment received by the Administrative Agent in respect of the Parallel Debt will - conditionally upon such payment not subsequently being avoided or ~~omission contained in~~ reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application - be deemed a ~~Report~~ satisfaction of a pro rata portion of the corresponding amounts of the Obligations, and any payment to the Secured Parties in satisfaction of the Obligations shall - conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application - be deemed as satisfaction of the corresponding amount of the Parallel Debt. The parties hereto acknowledge and agree that, for purposes of a Dutch Pledge, any resignation by the Administrative Agent is not effective until its rights under the Parallel Debt are assigned to the successor Administrative Agent. The parties hereto acknowledge and agree for the purposes of taking and ensuring the continuing validity of German law governed pledges (Pfandrechte) with the creation of parallel debt obligations of the Borrower as will be further described in a separate German law governed parallel debt undertaking. The Administrative Agent shall (i) hold such parallel debt undertaking as fiduciary agent (Treuhaender) and (ii) ~~shall not be liable~~ administer and hold as fiduciary agent (Treuhaender) any pledge created under a German law governed Collateral Document which is created in favor of any Secured Party or transferred to any Secured Party due to its accessory nature (Akzessorietaet), in each case in its own name and for ~~any information contained in any Report; (c)~~ the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations account of the ~~Borrowers’ personnel~~ Secured Parties. Each Lender, on its own behalf and ~~that~~ on behalf of its affiliated Secured Parties, hereby authorizes the Administrative Agent ~~undertakes no obligation~~ to ~~update~~enter as its agent in its name and on its behalf into any German law governed Collateral Document, ~~correct or supplement the Reports; (d) it will keep all Reports confidential~~ to accept as its agent in its name and ~~strictly for~~ on its ~~internal use~~behalf any pledge under such Collateral Document and to agree to and execute as agent in its name and on its behalf any amendments, supplements and ~~it will not share the Report with~~ other alterations to any ~~Borrower or~~ such Collateral Document and to release any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent such Collateral Document and any pledge created under any such ~~other Person preparing a Report harmless from and against,~~ Collateral Document in accordance with the ~~claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as~~ provisions herein and/or the ~~direct or indirect result of~~ provisions in any ~~third parties who might obtain all or part of any Report through the indemnifying Lender~~such Collateral Document.

Appears in 1 contract

Samples: Credit Agreement (Endo Pharmaceuticals Holdings Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including execution of subordination agreements in respect of Subordinated Indebtedness and 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrowers~~ any Loan Party or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any ~~Borrower~~ Loan Party or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as the Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; , or (~~vii~~vi) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Borrower; provided, that such resignation shall not affect the rights of the Administrative Agent pursuant to the Parallel Debt and the Administrative Agent shall continue to hold such rights until the effective assignment thereof by the Administrative Agent to a successor agent. The Administrative Agent shall not be removed at any time or for any reason without its prior written consent. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, ~~privileges, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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 the Administrative Agent. The Administrative Agent will reasonably cooperate in assigning its rights under the Parallel Debt to any such successor agent and will reasonably cooperate in transferring all rights under the Dutch Share Pledge to such successor agent. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any other Loan Document or any related agreement or any document furnished hereunder or thereunder. No Lender or Affiliate thereof identified in this Agreement as a Co-Syndication Agent, Co-Documentation Agent or Joint Lead Arranger 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 or Affiliates thereof shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender ~~Party~~ hereby makes the same acknowledgments with respect to the relevant Lenders or Affiliates thereof their respective capacities as Co-Syndication Agent, Co-Documentation Agent or Joint Lead Arranger as it makes with respect to the Administrative Agent in the preceding paragraph. Except with respect to the exercise of setoff rights of any Lender, in accordance with Section 9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against any Loan Party or with respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (aexcept as otherwise set forth herein in case of the Administrative Agent) ~~it has requested a copy of each Report prepared by or~~ 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. The Administrative Agent is a “representative” of the Holders of Secured Obligations within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Holder of Secured Obligations (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Holders of Secured Obligations upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Holders of Secured Obligations any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Holders of Secured Obligations. The Holders of Secured Obligations confirm that any amount irrevocably received by the Administrative Agent in satisfaction of all or part of the Dutch Parallel Debt be deemed a satisfaction of a pro rata portion of the Corresponding Obligations. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) as described in Sections 5.10(a)(v), 6.02(l), 9.02(c) and 9.02(e); (bii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Loan Document (including a permitted transfer to a Restricted Subsidiary other than a Loan Party), or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Holders of Secured Obligations herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent ~~(i) makes no representation~~ shall not be required to execute any such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, ~~express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report~~ and (ii) such release shall not ~~be liable for any information contained~~ in any ~~Report;~~ manner discharge, affect or impair the Secured Obligations or any Liens upon (cor obligations of any Loan Party or any Restricted Subsidiary in respect of) all interests retained by any Loan Party or any Restricted Subsidiary, including (without limitation) the ~~Reports are not comprehensive audits or examinations~~proceeds of the sale, all of which shall continue to constitute part of the Collateral. The Borrower, on its behalf and on behalf of the Restricted Subsidiaries, and ~~that any Person performing any field examination will inspect only specific information regarding the Borrowers~~ each Lender, on its behalf and ~~will rely significantly upon the Borrowers’ books and records~~on behalf of its affiliated Secured Parties, ~~as well as on representations of the Borrowers’ personnel and~~ agrees that the Administrative Agent ~~undertakes no obligation~~ may determine, in its sole discretion, to ~~update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will~~ not ~~share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality~~ perfect a Lien in an asset of any ~~other indemnification provision contained~~ Loan Party if the cost and expense associated with perfecting such Lien would be excessive in ~~this Agreement~~light of the value of such asset, ~~it will pay and protect, and indemnify, defend, and hold~~ or if such asset would not provide material credit support for the ~~Administrative Agent and any such other Person preparing a Report harmless from and against,~~ benefit of the ~~claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result~~ Holders of ~~any third parties who might obtain all or part of any Report through the indemnifying Lender~~Secured Obligations.

Appears in 1 contract

Samples: Credit Agreement (Quad/Graphics, Inc.)

The Administrative Agent. ~~Each of~~ each Borrower and the ~~Lender Parties~~ Banks hereby ~~irrevocably appoints the Administrative Agent as its agent hereunder~~ acknowledge and under the other Loan Documents 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 agree that all information regarding the terms set forth in any of the Loan ~~Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as~~ Documents or the ~~Administrative Agent hereunder shall have~~ transactions contemplated thereby (the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of the Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a"Confidential Terms") the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose,~~ kept confidential and shall not be ~~liable for~~ divulged to any party without the ~~failure~~ prior written consent of such other party except to ~~disclose~~the extent that (i) it is necessary to do so in working with legal counsel, auditors, taxing authorities or other governmental agencies or regulatory bodies or in order to comply with any ~~information relating~~ applicable federal or state laws including, without limitation, federal securities laws applicable to any Borrower or any Affiliate thereof, (ii) any of the ~~Subsidiaries that is communicated~~ Confidential Terms are in the public domain other than due to a breach of this covenant, or ~~obtained by~~ (iii) in the ~~bank serving as Administrative Agent~~ event of an Incipient Default or ~~any~~ an Event of ~~its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with~~ Default the ~~consent or at the request of the Required Lenders (or~~ Banks determine such ~~other number or percentage of the Lenders as shall~~ information to be necessary ~~under~~ or desirable to disclose in connection with enforcing or exercising the ~~circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent~~ Banks' rights hereunder; provided, that nothing herein shall ~~be deemed not to have knowledge of~~ prevent any ~~Default unless and until written notice thereof is given to the Administrative Agent by the Borrower Representative or a Lender Party, and the Administrative Agent shall not be responsible for or have~~ party from disclosing any ~~duty to ascertain or inquire into~~ such information (i) to any ~~statement~~other party to this Agreement, ~~warranty or representation made in or in connection with any Loan Document;~~ (ii) ~~the contents~~ to any proposed assignee or Participant of any ~~certificate~~Bank which agrees to comply with the provisions of this Section, ~~report~~ or ~~other document delivered hereunder or in connection with any Loan Document;~~ (iii) to its Affiliates, employees, directors, agents, attorneys, accountants and other professional advisors or other Persons deemed necessary or appropriate in the ~~performance or observance of any~~ reasonable judgment of the ~~covenants~~disclosing party, ~~agreements or other terms or conditions set forth~~ in each case who are made aware of and instructed to comply with the provisions of this Section 12.17; and, provided, further, that no disclosure made with respect to any Loan ~~Document; (iv)~~ Document shall include a copy of such Loan Document to the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or~~ extent that a summary would suffice in ~~connection with any Loan Document; (v)~~ lieu thereof and in the ~~legality, validity, enforceability, effectiveness, adequacy or genuineness~~ event that it is necessary for a copy of any Loan Document or to be disclosed, any ~~other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; or (vii) the satisfaction of any condition~~ specific terms set forth in ~~Article IV or elsewhere in any~~ such Loan Document with respect to fees, pricing, advance rates and the like shall be redacted therefrom prior to disclosure of such Loan Document~~, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent~~. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication believed by it to be genuine and correct, and to have been authorized, signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made or authorized by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided set forth in this ~~paragraph,~~ section shall survive the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Company (if such successor is not a Lender). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company. 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, obligations and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions termination of this ~~Article, Sections 2.17(d) and 9.03 shall continue in effect~~ Agreement for ~~the benefit~~ a period of one year following 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. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lendertermination.

Appears in 1 contract

Samples: Credit Agreement (Gramercy Capital Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder~~ both as administrative agent and ~~under the other Loan Documents~~ collateral 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 hereof and the ~~Loan~~ other Financing Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder and under the other Financing Documents shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent,~~ Agent and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrowers~~ any Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein or in the ~~Loan~~ other Financing Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby or thereby 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); , and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for ~~the~~ any failure to disclose, any information relating to ~~any Borrower~~ the Borrowers or any of ~~the~~ their Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative~~ Borrowers or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document;~~ this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~with any Loan Document;~~ herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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. With respect to the release of Collateral, the Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any property covered by this Agreement or the other Financing Documents (i) upon termination or expiration of the Commitments, the payment and satisfaction of all obligations arising with respect to the Loans, all fees and expenses, the expiration or termination of all the Letters of Credit and the reimbursement of all LC Disbursements; or (ii) constituting property being sold or disposed of in compliance with the provisions of the Financing Documents (and the Administrative Agent may rely in good faith conclusively on any certificate stating that the property is being sold or disposed of in compliance with the provisions of the Financing Documents, without further inquiry); provided, however, that (x) the Administrative Agent shall not be required to execute any release on terms which, in the Administrative Agent's opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair any Liens upon all interests retained, all of which shall continue to constitute part of the property covered by the Financing Documents. With respect to perfecting security interests in Collateral which, in accordance with Article 9 of the Uniform Commercial Code or any comparable provision of any Lien perfection statute in any applicable jurisdiction, can be perfected only by possession, each Lender hereby appoints each other Lender its agent for the purpose of perfecting such interest. Should any Lender (other than the Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the Administrative Agent, and, promptly upon the Administrative Agent's request, shall deliver such Collateral to the Administrative Agent or in accordance with the Administrative Agent's instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce this Agreement or any other Financing Document or to realize upon any Collateral for the Loans, it being understood and agreed that such rights and remedies may be exercised only by or with the approval of the Administrative Agent. In the event that a petition seeking relief under Title 11 of the United States Code or any other Federal, state or foreign bankruptcy, insolvency, liquidation or similar law is filed by or against any Borrower or any other Person obligated under the Financing Document, the Administrative Agent is authorized, to the fullest extent permitted by applicable law, to file a proof of claim on behalf of itself and the Lenders in such proceeding for the total amount of obligations owed by such Person. With respect to any such proof of claim which the Administrative Agent may file, each Lender acknowledges that without reliance on such proof of claim, such Lender shall make its own evaluation as to whether an individual proof of claim must be filed in respect of such obligations owed to such Lender and, if so, take the steps necessary to prepare and timely file such individual claim. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, with the approval of the Borrowers (not to be unreasonably withheld, except that no such approval shall be required upon the occurrence and continuance of a Default), to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial bank, which shall be reasonably satisfactory to the Company~~bank with such an office. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender ~~Party hereby agrees that (a) it has requested a copy~~ acknowledges the potential conflict of interest of each ~~Report prepared by or on behalf~~ other Lender as a result of Lenders holding disproportionate interests in the ~~Administrative Agent; (b)~~ Loans, and expressly consents to and waives any claim based upon such conflict of interest. The parties hereto agree that the ~~Administrative~~ titles Co-Syndication Agent ~~(i) makes~~ and Co-Documentation Agent are honorary and confer no ~~representation or warranty~~duties upon such agents except as a Lender hereunder, ~~express or implied, as~~ provided that each Co-Syndication Agent and Co-Documentation Agent shall be entitled to the ~~completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report~~ rights and ~~(ii) shall not be liable~~ benefits specifically provided for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lenderherein.

Appears in 1 contract

Samples: Revolving Credit Agreement (Phillips Van Heusen Corp /De/)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Banks hereby irrevocably appoints ~~the Administrative Agent~~ JPMorgan Chase Bank, N.A. as its agent ~~hereunder and under the other Loan Documents~~ 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrowers~~ Company or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Borrower~~ the Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative~~ Company or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; or (vii) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication believed by it to be genuine and correct, and to have been authorized, signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made or authorized by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Company (if such successor is not a Lender). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company. 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, obligations and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 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. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.or

Appears in 1 contract

Samples: Credit Agreement (Hillenbrand, Inc.)

The Administrative Agent. (a) Each of the ~~Lender Parties~~ Lenders and the Issuer hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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. . (b) The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its ~~Affiliates~~ Related Parties may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Loan Parties or any Subsidiary of ~~the Subsidiaries~~ a Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the ~~Required~~ Requisite Lenders (or such other number or percentage of the Lenders as shall be necessary under the ~~circumstances as provided in Section 9.02~~terms of this Agreement); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any ~~Borrower~~ Loan Party or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its ~~Affiliates~~ Related Parties 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~~ Requisite Lenders (or such other number or percentage of the Lenders as shall be necessary under the ~~circumstances as provided in Section 9.02~~terms of this Agreement) or in the absence of its own (or its Affiliates’, agents’, officers’, directors’ or advisors’) gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the ~~Collateral;~~ Collateral or (~~vii~~vi) the satisfaction of any condition set forth in Article IV III or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ reasonably believed by it in good faith to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and reasonably believed by it in good faith to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. . (e) The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. . (f) Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Issuing Bank~~ Issuer and the ~~Borrower Representative~~Borrower. Upon any such resignation, the ~~Required~~ Requisite Lenders shall have the ~~right~~ right, with the consent (not to be unreasonably withheld or delayed) of the Borrower (provided that such consent shall not be required if a Default or Event of Default has occurred and is continuing) to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the ~~Required~~ Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuer, appoint a successor Administrative ~~Agent,~~ Agent which shall be a commercial bank or an Affiliate of any such commercial bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this ~~Article~~Article X, ~~Sections 2.17(d~~Section 2.16(c) and ~~9.03~~ Section 13.2 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. . (g) Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. . (h) Each Lender ~~Party~~ hereby agrees that (ai) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; , (bii) the Administrative Agent (iA) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (iiB) shall not be liable for any information contained in any Report; , (ciii) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the ~~Borrowers~~ Loan Parties and will rely significantly upon the ~~Borrowers~~Loan Parties’ books and records, as well as on representations of the ~~Borrowers~~Loan Parties’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; , (div) it will keep all Reports confidential and strictly for its internal use, ~~and it will~~ not share the Report with ~~any Borrower or~~ any other Person except as otherwise permitted pursuant to this ~~Agreement;~~ Agreement and (ev) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

Appears in 1 contract

Samples: Revolving Credit, Term Loan and Guarantee Agreement (Us Concrete Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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. ~~The bank~~ Each of the Canadian Lenders and the Canadian Issuing Bank hereby irrevocably appoints the Canadian Agent as its agent and authorizes the Canadian 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 Canadian Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each Person serving as ~~the Administrative~~ an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Loan Parties or any Subsidiary of ~~the Subsidiaries~~ a Loan Party or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. ~~The Administrative~~ Each Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ neither Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Administrative~~ such 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); , and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any ~~Borrower~~ Loan Party or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as ~~Administrative~~ such Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Neither 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) or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ Neither Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by the Borrower Representative or a ~~Lender Party~~Lender, and ~~the Administrative~~ neither Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral~~; or~~ , (~~vii~~vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent or (vii) whether any Loans or other Obligations constitute Permitted Debt pursuant to the ~~Administrative Agent~~Indenture (and to the extent that such Loans or other Obligations do not constitute Permitted Debt, each applicable Lender shall continue to remain obligated for its Applicable Percentage of such Loans and other Obligations). ~~The Administrative~~ Each Lender has received a copy of the Indenture and has reviewed the terms and conditions thereof, including, but not limited to the conditions relating to the status of the Obligations as Designated Senior Debt and Senior Debt (as each is defined in the Indenture) under the Indenture. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. ~~The Administrative~~ Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the Administrative~~ each 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 ~~the Administrative~~ Agent. Subject to the appointment and acceptance of a successor ~~Administrative~~ Agent as provided in this paragraph, ~~the Administrative~~ either Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrowers, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor ~~Administrative Agent,~~ Agent which shall be a commercial bank or an Affiliate of any such commercial bank~~, which shall be reasonably satisfactory to the Company~~. Upon the acceptance of its appointment as ~~Administrative~~ an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, ~~privileges, obligations~~ privileges and duties of the retiring ~~(or retired) Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After ~~the Administrative~~ either Agent’s resignation hereunder, the provisions of this Article, ~~Sections~~ Section 2.17(d) 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~~ an Agent. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon ~~the Administrative~~ either Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon ~~the Administrative~~ either Agent or any other Lender ~~Party~~ 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. Each Lender ~~Party~~ hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of ~~the Administrative~~ each Agent; (b) ~~the Administrative~~ such Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the ~~Borrowers~~ Loan Parties and will rely significantly upon the ~~Borrowers~~Loan Parties’ books and records, as well as on representations of the ~~Borrowers~~Loan Parties’ personnel and that ~~the Administrative~~ such Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, ~~and it will~~ not share the Report with any ~~Borrower~~ Loan Party or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold ~~the Administrative~~ such Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Administrative Agent is authorized by all of the Lenders to enter into the Lien Priority Agreements and to exercise all rights thereunder.

Appears in 1 contract

Samples: Credit Agreement (Park Ohio Holdings Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Company or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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~~10.02); , and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Borrower~~ the Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of 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~~10.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative~~ Company or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document;~~ herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein or therein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrowers~~a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~sub-~~sub agents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-~~sub agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~sub-~~sub agent and to the Related Parties of the Administrative Agent and any such ~~sub-~~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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Lenders and the ~~Borrower Representative~~Company. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Company, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial bank~~ Lender with an office in New York, New York or an Affiliate of ~~any such commercial bank, which shall be reasonably satisfactory to the Company~~a Lender. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Company and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 10.03 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as Notwithstanding anything herein to the ~~completeness or accuracy~~ contrary, the Joint Bookrunners, the Joint Lead Arrangers, the Syndication Agent and the Co-Documentation Agents named on the cover page of ~~any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii)~~ this Agreement shall not ~~be liable for~~ have any ~~information contained in any Report; (c) the Reports are not comprehensive audits~~ duties or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in liabilities under this Agreement, ~~it will pay and protect~~except in their capacity, ~~and indemnify~~if any, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as ~~the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender~~Lenders.

Appears in 1 contract

Samples: Credit Agreement (1 800 Flowers Com Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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, including the determination of any successor LIBO Rate as contemplated by the definition of the term “LIBO Rate”. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrowers~~ Holdings, any Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. The Administrative Agent shall ~~not~~ have ~~any~~ no duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise 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~~9.08); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, ~~and~~ nor shall ~~not~~ it be liable for the failure to disclose, any information relating to Holdings, any Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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~~9.08) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~the~~ Holdings, a Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~with any Loan Document;~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or ~~document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ document or (~~vii~~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~~ such Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper ~~Person~~person. The Administrative Agent may also ~~may~~ rely upon any statement made to it orally or by telephone and believed by it to be have been made ~~or authorized~~ by the proper ~~Person~~person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrowers~~a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by ~~the Administrative Agent~~it. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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~~ Credit Facilities as well as activities as ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided ~~in this paragraph~~below, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~U.S. Borrower. Upon any such resignation, the Required Lenders shall have the ~~right to appoint a successor~~ right, in consultation with the U.S. Borrower and, unless an Event of Default shall have occurred and be continuing, with the consent of the ~~Company~~ U.S. Borrower (~~if such successor is~~ which shall not be unreasonably withheld), to appoint a ~~Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank. If no successor Administrative Agent has been appointed pursuant to the immediately preceding sentence by the 30th day after the date such notice of resignation was given by such Administrative Agent, such Administrative Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of such Administrative Agent hereunder and/or under any other Loan Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent. If any person serving as an Administrative Agent is a Defaulting Lender pursuant to clause (e) of the definition thereof, the Required Lenders may, by notice in writing to the U.S. Borrower and such person remove such person as Administrative Agent and, in consultation with the U.S. Borrower and, unless an Event of Default shall have occurred and be continuing, with the consent of the U.S. Borrower (which shall not be ~~reasonably satisfactory~~ unreasonably withheld), appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders), then such removal shall nonetheless become effective and the Required Lenders shall thereafter perform all the duties of the Administrative Agent hereunder and/or under any other Loan Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent. Any such resignation by or removal of such Administrative Agent hereunder shall also constitute, to the ~~Company~~extent applicable, its resignation as an Issuing Bank, in which case such resigning Administrative Agent or such Administrative Agent subject to removal (a) shall not be required to issue any further Letters of Credit hereunder and (b) shall maintain all of its rights as Issuing Bank with respect to any Letters of Credit issued by it prior to the date of such resignation or removal. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ U.S. Borrower and such successor. After ~~the~~ an Administrative Agent’s resignation or removal hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 9.05 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. ~~Each~~ No Lender ~~Party hereby agrees~~ shall have any right individually to enforce any Guarantee of the Obligations, it being understood and agreed that ~~(a) it has requested a copy of each Report prepared~~ all powers, rights and remedies under the Loan Documents may be exercised solely by or the Administrative Agent on behalf of the ~~Administrative Agent; (b)~~ Lenders in accordance with the terms thereof. Each Lender, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. The provisions of this paragraph are for the sole benefit of the Lenders and shall not afford any right to, or constitute a defense available to, any Loan Party. The Administrative Agent ~~(i) makes no representation~~ hereby acknowledges that any Guarantee by a Subsidiary shall be released automatically upon the occurrence of a Guarantee Release Date with respect to such Subsidiary. None of the Lenders or ~~warranty~~other persons identified on the facing page of this Agreement as a “syndication agent” or “documentation agent” shall have any right, ~~express~~ power, obligation, liability, responsibility or ~~implied~~duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, as none of the Lenders or other persons so identified shall have or be deemed to ~~the completeness or accuracy of~~ have any ~~Report or~~ fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the ~~information contained therein~~ Lenders or ~~any inaccuracy~~ other persons so identified in deciding to enter into this Agreement or ~~omission contained~~ in taking or ~~relating to a Report and (ii) shall~~ not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lendertaking action hereunder.

Appears in 1 contract

Samples: Credit Agreement (Cbre Group, Inc.)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each Issuing Bank hereby irrevocably appoints the Administrative Agent as its (and for purposes of the Subsidiary Guaranty, its Affiliates) agent ~~hereunder and under the other Loan Documents~~ and authorizes the Administrative Agent to take such actions on its ~~behalf, including execution of the other Loan Documents,~~ behalf and its Affiliates behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and of the ~~Loan Documents~~Subsidiary Guaranty, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document;~~ this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~with any Loan Document;~~ herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, with the approval of the Borrower, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative Agent~~, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 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. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.such

Appears in 1 contract

Samples: Credit Agreement (Eagle Materials Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Banks hereby irrevocably appoints ~~the Administrative Agent~~ JPMorgan Chase Bank, N.A., and its successors to serve as ~~its~~ administrative agent ~~hereunder and~~ under the ~~other~~ Loan Documents 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings, the ~~Borrowers~~ Parent Borrower or any ~~of the Subsidiaries~~ other Subsidiary or ~~other~~ Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Borrower~~ Holdings or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own bad faith, gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the ~~Borrower Representative~~ Parent Borrower, Purchasing or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~with any Loan Document;~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Parent Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~the~~ each Issuing Bank and the ~~Borrower Representative~~Parent Borrower. Upon any such resignation, the Required Lenders shall have the ~~right to appoint a successor~~ right, with the consent of the ~~Company~~ Parent Borrower, to appoint a successor (if provided, that such ~~successor~~ Parent Borrower consent (i) shall not be unreasonably withheld and (ii) shall not be required if, at the time of such appointment, an Event of Default has occurred and is ~~not a Lender~~continuing). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Parent Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Parent Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. The Joint Bookrunners, Lead Arrangers and Syndication Agent (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under this Agreement or any other documents related thereto. Each Lender ~~Party~~ hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or field examinations, and that any Person performing any field examination will inspect only specific information regarding the ~~Borrowers~~ Loan Parties and will rely significantly upon the ~~Borrowers~~Loan Parties’ books and records, as well as on representations of the ~~Borrowers~~Loan Parties’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential in accordance with the requirements of Section 9.12 and strictly for its internal use, ~~and it will~~ not share the Report with any ~~Borrower~~ Loan Party or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, ~~the~~ any claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. Each of the Lenders hereby (a) authorizes and instructs the Administrative Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (m) of Section 6.02 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.

Appears in 1 contract

Samples: Credit Agreement (J C Penney Co Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder~~ both as administrative agent and ~~under the other Loan Documents~~ collateral 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 hereof and the ~~Loan~~ other Financing Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder and under the other Financing Documents shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent,~~ Agent and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or ~~any of the~~ their Subsidiaries or other ~~Affiliate~~ Affiliates thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein or in the ~~Loan~~ other Financing Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby or thereby 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); , and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for ~~the~~ any failure to disclose, any information relating to ~~any Borrower~~ the Borrowers or any of ~~the~~ their Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative~~ Borrowers or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document;~~ this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~with any Loan Document;~~ herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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. With respect to the release of Collateral, the Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any property covered by this Agreement or the other Financing Documents (i) upon termination or expiration of the Commitments, the payment and satisfaction of all obligations arising with respect to the Loans, all fees and expenses, the expiration or termination of all the Letters of Credit and the reimbursement of all LC Disbursements; or (ii) constituting property being sold or disposed of in compliance with the provisions of the Financing Documents (and the Administrative Agent may rely in good faith conclusively on any certificate stating that the property is being sold or disposed of in compliance with the provisions of the Financing Documents, without further inquiry); provided, however, that (x) the Administrative Agent shall not be required to execute any release on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair any Liens upon all interests retained, all of which shall continue to constitute part of the property covered by the Financing Documents. With respect to perfecting security interests in Collateral which, in accordance with Article 9 of the Uniform Commercial Code or any comparable provision of any Lien perfection statute in any applicable jurisdiction, can be perfected only by possession, each Lender hereby appoints each other Lender its agent for the purpose of perfecting such interest. Should any Lender (other than the Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the Administrative Agent, and, promptly upon the Administrative Agent’s request, shall deliver such Collateral to the Administrative Agent or in accordance with the Administrative Agent’s instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce this Agreement or any other Financing Document or to realize upon any Collateral for the Loans, it being understood and agreed that such rights and remedies may be exercised only by or with the approval of the Administrative Agent. In the event that a petition seeking relief under Title 11 of the United States Code or any other Federal, state or foreign bankruptcy, insolvency, liquidation or similar law is filed by or against any Credit Party or any other Person obligated under the Financing Document, the Administrative Agent is authorized, to the fullest extent permitted by applicable law, to file a proof of claim on behalf of itself and the Lenders in such proceeding for the total amount of obligations owed by such Person. With respect to any such proof of claim which the Administrative Agent may file, each Lender acknowledges that without reliance on such proof of claim, such Lender shall make its own evaluation as to whether an individual proof of claim must be filed in respect of such obligations owed to such Lender and, if so, take the steps necessary to prepare and timely file such individual claim. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the ~~Borrower Representative~~Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, with the approval of the Borrowers (not to be unreasonably withheld, except that no such approval shall be required upon the occurrence and continuance of an Event of Default), to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Bank, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial bank, which shall be reasonably satisfactory to the Company~~bank with such an office. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender ~~Party hereby agrees that (a) it has requested a copy~~ acknowledges the potential conflict of interest of each ~~Report prepared by or on behalf~~ other Lender as a result of Lenders holding disproportionate interests in the ~~Administrative Agent; (b)~~ Loans, and expressly consents to and waives any claim based upon such conflict of interest. The parties hereto agree that the ~~Administrative~~ titles Joint Book Manager, Syndication Agent ~~(i) makes~~ and Documentation Agent are honorary and confer no ~~representation or warranty~~duties upon such agents except as a Lender hereunder, ~~express or implied~~provided that the Joint Book Managers, as Syndication Agent and Documentation Agent shall be entitled to the ~~completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report~~ rights and ~~(ii) shall not be liable~~ benefits specifically provided for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lenderherein.

Appears in 1 contract

Samples: Revolving Credit Agreement (Usec Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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. ~~The bank~~ Each of the Canadian Revolving Lenders and the Canadian Issuing Bank hereby irrevocably appoints the Canadian Agent as its agent and authorizes the Canadian 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 Canadian Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each Person serving as ~~the Administrative~~ an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Loan Parties or any Subsidiary of ~~the Subsidiaries~~ a Loan Party or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. ~~The Administrative~~ Each Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ neither Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Administrative~~ such 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); , and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any ~~Borrower~~ Loan Party or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as ~~Administrative~~ such Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Neither 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) or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ Neither Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by the Borrower Representative or a ~~Lender Party~~Lender, and ~~the Administrative~~ neither Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral~~; or~~ , (~~vii~~vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent or (vii) whether any Loans or other Obligations constitute Permitted Debt pursuant to the ~~Administrative Agent~~2011 Indenture (and to the extent that such Loans or other Obligations do not constitute Permitted Debt, each applicable Lender shall continue to remain obligated for its Applicable Percentage of such Loans and other Obligations). ~~The Administrative~~ Each Lender has received copies of the 2004 Indenture and the 2011 Indenture and has reviewed the terms and conditions thereof, including, but not limited to the conditions relating to the status of the Obligations as Designated Senior Debt and Senior Debt (as each is defined in the 2004 Indenture). Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. ~~The Administrative~~ Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the Administrative~~ each 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 ~~the Administrative~~ Agent. Subject to the appointment and acceptance of a successor ~~Administrative~~ Agent as provided in this paragraph, ~~the Administrative~~ either Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrowers, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor ~~Administrative Agent,~~ Agent which shall be a commercial bank or an Affiliate of any such commercial bank~~, which shall be reasonably satisfactory to the Company~~. Upon the acceptance of its appointment as ~~Administrative~~ an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, ~~privileges, obligations~~ privileges and duties of the retiring ~~(or retired) Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After ~~the Administrative~~ either Agent’s resignation hereunder, the provisions of this Article, ~~Sections~~ Section 2.17(d) 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~~ an Agent. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon ~~the Administrative~~ either Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon ~~the Administrative~~ either Agent or any other Lender ~~Party~~ 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. Each Lender ~~Party~~ hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of ~~the Administrative~~ each Agent; (b) ~~the Administrative~~ such Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the ~~Borrowers~~ Loan Parties and will rely significantly upon the ~~Borrowers~~Loan Parties’ books and records, as well as on representations of the ~~Borrowers~~Loan Parties’ personnel and that ~~the Administrative~~ such Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, ~~and it will~~ not share the Report with any ~~Borrower~~ Loan Party or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold ~~the Administrative~~ such Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. For greater certainty, and without limiting the powers of the Canadian Agent under the Loan Documents, each of the Canadian Revolving Lenders, the Canadian Issuing Bank and the Canadian Agent (but solely in its capacity as the holder and depositary of the Bonds (as defined below)), acknowledges and agrees that the Canadian Agent shall, for the purposes of holding any security granted by any Canadian Loan Party under the Loan Documents pursuant to the laws of the Province of Québec to secure payment of bonds (or any similar instruments) (collectively, the “Bonds”), be the holder of an irrevocable power of attorney (fondé de pouvoir) (within the meaning of Article 2692 of the Civil Code of Québec) for all present and future Canadian Revolving Lenders, the Canadian Issuing Bank, indemnified parties (with respect to Canadian Revolving Loans), as well as holders and depositaries of the Bonds. Each of the Canadian Revolving Lenders, the Canadian Issuing Bank and the Canadian Agent (but solely in its capacity as the holder and depositary of the Bonds) constitutes, to the extent necessary, the Canadian Agent as the holder of such irrevocable power of attorney (fondé de pouvoir) in order to hold security granted by any Canadian Loan Party under the Loan Documents in the Province of Québec to secure payment of the Bonds. Each assignee of the Canadian Revolving Lenders, successor or assignee of the Canadian Issuing Bank, indemnified party (with respect to Canadian Revolving Loans) and successor Canadian Agent (but solely in its capacity as the holder and depositary of the Bonds) shall be deemed to have confirmed and ratified the constitution of the Canadian Agent as the holder of such irrevocable power of attorney (fondé de pouvoir). Furthermore, the Canadian Agent hereby agrees to act in the capacity of the holder and depositary of the Bonds on its own behalf as Canadian Agent and for and on behalf and for the benefit of all present and future Canadian Revolving Lenders, the Canadian Issuing Bank and indemnified parties (with respect to the Canadian Revolving Loans). Notwithstanding the provisions of Section 32 of the Special Powers of Legal Persons Act (Québec), the Canadian Agent may acquire and be the holder of a Bond. RB&W Logistics Canada, Inc. and each other Canadian Loan Party acknowledges that each of the Bonds executed by it constitutes a title of indebtedness, as such term is used in Article 2692 of the Civil Code of Québec. Notwithstanding the provisions of Section 19.1 hereof, the provisions of this Section 10.18 shall be governed by the laws of the Province of Québec and the federal laws of Canada applicable therein. The Syndication Agent, Co-Documentation Agents and Joint Bookrunners shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: Credit Agreement (Park Ohio Industries Inc/Oh)

The Administrative Agent. Each of the Lenders, the Swingline Lender ~~Parties~~ and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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 hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except, in each case, as set forth in the sixth paragraph of this Article, the provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and no Borrower shall have rights as a third party beneficiary of any of such provisions. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent~~Agent and the term “Lender” or “Lenders” shall, ~~and such bank~~ unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrowers~~ any Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent: (a) ~~the Administrative Agent~~ shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) ~~the Administrative Agent~~ shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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~~9.2 or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, ~~the Administrative Agent shall not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower or any of ~~the Subsidiaries~~ its Affiliates that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it (i) 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~~9.2) or (ii) in the absence of its own gross ~~negligence~~ negligence, bad faith or willful ~~misconduct~~misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Lead Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~with any Loan Document;~~ herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in herein or the occurrence of any ~~Loan Document;~~ Default, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or ~~communication~~ intranet website posting or other distribution) believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrowers~~any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by ~~notifying~~ giving 15 Business Days’ prior written notice to the Lenders, the Swingline Lender, the Issuing Banks and the Lead Borrower. Any such resignation by an Administrative Agent hereunder shall also constitute its resignation as an Issuing Bank and Swingline Lender, in which case the ~~Borrower Representative~~resigning Administrative Agent shall not be required to issue any further Letters of Credit or make any additional Swingline Loans hereunder, and shall maintain all of its rights as an Issuing Bank or Swingline Lender, as the case may be, with respect to any Letters of Credit issued by it, or Swingline Loans made by it, prior to the date of such resignation. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Lead Borrower, to appoint a ~~successor~~ successor, which shall be a commercial bank having a combined capital and surplus of at least $200,000,000 with an office in New York, New York, or an Affiliate of any such commercial bank with an office in New York, New York; provided that, in the ~~consent of the Company (if~~ event that such successor or Administrative Agent appointed by the Required Lenders is not ~~a Lender~~Xxxxxx Xxxxxxx Senior Funding, Inc. or any of its Affiliates, and so long as no Event of Default shall have occurred and be continuing, the Lead Borrower shall have the right to approve such successor Administrative Agent (such approval 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 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent~~Agent meeting the qualifications set forth above; provided that, ~~which~~ in the event that such successor or Administrative Agent appointed by the resigning Administrative Agent is not Xxxxxx Xxxxxxx Senior Funding, Inc. or any of its Affiliates, and so long as no Event of Default shall have occurred and be ~~a commercial bank~~ continuing, the Lead Borrower shall have the right to approve such successor Administrative Agent (such approval not to be unreasonably withheld or ~~an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company~~delayed). 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, obligations~~ privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Article). The fees payable by Parent or the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Lead Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 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. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan, any reimbursement obligation in respect of any LC Disbursement or any Cash Collateral Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on any Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (x) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, any reimbursement obligation in respect of any LC Disbursement, any Cash Collateral Obligation and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the Issuing Banks and the Administrative Agent under Section 2.11 and 9.3) allowed in such judicial proceeding; and (y) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each Issuing Bank to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the Issuing Bank, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Section 2.11 and 9.3. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or any of their Related Parties 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or any of their Related Parties 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. ~~Each Lender Party hereby agrees that (a) it has requested a copy of~~ Anything herein to the contrary notwithstanding, the Arrangers, the Syndication Agent and each ~~Report prepared by~~ Documentation Agent shall not have any powers, duties or ~~on behalf~~ responsibilities under this Agreement or any of the other Loan Documents, except in their respective capacities, as applicable, as the Administrative ~~Agent;~~ Agent or a Lender hereunder. The Lenders irrevocably authorize (bi) any Guarantor to be released from its obligations under any Guaranty as contemplated by Section 9.17 and (ii) the Administrative Agent ~~(i) makes no representation or warranty, express or implied, as~~ to acknowledge the ~~completeness or accuracy~~ release of ~~any Report or any of the information contained therein or any inaccuracy or omission contained~~ such Guarantor from its obligations under such Guaranty in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that accordance with Section 9.17. Upon request by the Administrative Agent ~~undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with~~ at any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and againsttime, the ~~claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as~~ Required Lenders will reaffirm in writing the ~~direct or indirect result of any third parties who might obtain all or part of any Report through~~ authorization granted in the ~~indemnifying Lender~~immediately preceding sentence.

Appears in 1 contract

Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.)

The Administrative Agent. SECTION 7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc. (a) Each ~~of the Lender Parties~~ Grantor hereby irrevocably constitutes and appoints the Administrative Agent and any officer or agent thereof, with full power of substitution, as its ~~agent hereunder~~ true and ~~under~~ lawful attorney-in-fact with full irrevocable power and authority in the ~~other Loan Documents~~ place and ~~authorizes~~ stead of such Grantor and in the ~~Administrative Agent to take~~ name of such ~~actions on~~ Grantor or in its ~~behalf~~own name, ~~including execution~~ for the purpose of ~~the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by~~ carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the ~~Loan Documents~~purposes of this Agreement, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agentand, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of the Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without without limiting the generality of the foregoing, ~~(a)~~ each Grantor hereby gives the Administrative Agent ~~shall not be subject~~ the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following: (i) in the name of such Grantor or its own name, or otherwise, take possession of and indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable or Contract or with respect to any ~~fiduciary~~ other Collateral and file any claim or take any other ~~implied duties, regardless~~ action or proceeding in any court of ~~whether a Default has occurred and is continuing; (b)~~ law or equity or otherwise deemed appropriate by the Administrative Agent ~~shall not~~ for the purpose of collecting any and all such moneys due under any Receivable or Contract or with respect to any other Collateral whenever payable; (ii) in the case of any Intellectual Property, execute and deliver, and have recorded, any ~~duty to take any discretionary action or exercise any discretionary powers~~and all agreements, ~~except discretionary rights~~ instruments, documents and ~~powers expressly contemplated by the Loan Documents that~~ papers as the Administrative Agent ~~is required~~ may request to ~~exercise~~ evidence the Administrative Agent's and the Lenders' security interest in ~~writing as directed~~ such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby; (iii) pay or discharge taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the ~~Required Lenders (~~terms of this Agreement and pay all or ~~such other number or percentage~~ any part of the ~~Lenders as shall be necessary under~~ premiums therefor and the ~~circumstances as~~ costs thereof; (iv) execute, in connection with any sale provided for in Section ~~9.02~~6.6 or 6.7, any indorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and (1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Administrative Agent or as the Administrative Agent will direct; (2) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (3) sign and indorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (5) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (6) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Administrative Agent may deem appropriate; (7) assign any Copyright, Patent or Trademark (along with the goodwill of the business to which any such Copyright, Patent or Trademark pertains), throughout the world for such term or terms, on such conditions, and in such manner, as the Administrative Agent will in its sole discretion determine; and (c8) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Administrative Agent were the absolute owner thereof for all purposes, and do, at the Administrative Agent's option and such Grantor's expense, at any time, or from time to time, all acts and things which the Administrative Agent deems necessary to protect, preserve or realize upon the Collateral and the Administrative Agent's and the Lenders' security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do. Anything in this Section 7.1(a) ~~except as expressly set forth in~~ to the ~~Loan Documents~~contrary notwithstanding, the Administrative Agent agrees that it will not exercise any rights under the power of attorney provided for in this Section 7.1(a) unless an Event of Default shall ~~not~~ have occurred and be continuing. (b) If any ~~duty~~ Grantor fails to ~~disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower~~ perform or ~~any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or~~ comply with any of its ~~Affiliates in~~ agreements contained herein, the Administrative Agent, at its option, but without any ~~capacity.~~ obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement. (c) The expenses of the Administrative Agent ~~shall not be liable for any action taken or not taken by it~~ incurred in connection 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~~ actions undertaken as provided in this Section ~~9.02) or in~~ 7.1, together with interest thereon at a rate per annum equal to the ~~absence~~ highest rate per annum at which interest would then be payable on any category of ~~its own gross negligence or willful misconduct. The~~ past due ABR Loans under the Credit Agreement, from the date of payment by the Administrative Agent ~~shall~~ to the date reimbursed by the relevant Grantor, will be ~~deemed not to have knowledge of any Default unless and until written notice thereof is given~~ payable by such Grantor to the Administrative Agent by the Borrower Representative or a Lender Party, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality, validity, enforceability, effectiveness, adequacy or genuineness of any Loan Document or any other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; or (vii) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication believed by it to be genuine and correct, and to have been authorized, signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made or authorized by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Company (if such successor is not a Lender). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company. 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, obligations and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 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. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; demand. (d) it Each Grantor hereby ratifies all that said attorneys will ~~keep all Reports confidential~~ lawfully do or cause to be done by virtue hereof. All powers, authorizations and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision agencies contained in this ~~Agreement, it will pay~~ Agreement are coupled with an interest and ~~protect,~~ are irrevocable until this Agreement is terminated and ~~indemnify, defend, and hold~~ the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lendersecurity interests created hereby are released.

Appears in 1 contract

Samples: Credit Agreement (General Bearing Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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. [[NYCORP:3072687v11:4452W:07/11/08--04:02 p]] The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The bank serving as the Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as the Administrative Agent or any of 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) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~with any Loan Document;~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrowers~~a Loan Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. [[NYCORP:3072687v11:4452W:07/11/08--04:02 p]] The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit ~~facilities~~ facility provided for herein as well as activities as ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative ~~Agent~~ Agent, as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right to appoint a successor~~ right, with the consent of the ~~Company~~ Borrower (~~if such successor~~ which consent shall not be unreasonably withheld, and shall not be required so long as any Event of Default set forth in clause (i) or (j) of Section 7.01 has occurred and is ~~not~~ continuing), to appoint a ~~Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then ~~the~~ such retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon either the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon either the Administrative Agent or any other Lender ~~Party~~ 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. Each ~~Lender Party hereby~~ party hereto agrees and acknowledges that ~~(a) it has requested a copy of each Report prepared by~~ the Arranger does not have any duties or ~~on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied,~~ responsibilities in its capacity as ~~to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report~~ Arranger hereunder and ~~(ii)~~ shall not ~~be liable for~~ have, or become subject to, any ~~information contained~~ liability hereunder in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.capacity. [[NYCORP:3072687v11:4452W:07/11/08--04:02 p]]

Appears in 1 contract

Samples: Credit Agreement (Yum Brands Inc)

The Administrative Agent. Each of the Lenders and the Issuing Lender ~~Parties~~ hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Company or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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~~10.02 or in any other Loan Document); , and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Borrower~~ the Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of 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~~10.02 or in any other Loan Document) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative or~~ Company, a Lender ~~Party~~or the Issuing Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document;~~ herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein or therein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrowers~~a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Lender and the ~~Borrower Representative~~Company. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Company, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Lender, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial bank~~ Lender with an office in New York, New York or an Affiliate of ~~any such commercial bank, which shall be reasonably satisfactory to the Company~~a Lender. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the ~~Borrowers~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Company and such successor. After the Administrative Agent’s resignation ~~hereunder~~hereunder and under the other Loan Documents, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 10.03 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. Each Lender ~~Party~~ and the Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ and the Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. ~~Each Lender Party hereby agrees that (a~~Except as otherwise provided in Section 10.02(b) ~~it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b)~~ with respect to this Agreement, the Administrative Agent ~~(i) makes no representation or warranty~~may, ~~express or implied, as to~~ with the ~~completeness or accuracy of any Report or any~~ prior consent of the ~~information contained therein~~ Required Lenders (but not otherwise), consent to any modification, supplement or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations waiver under of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying LenderLoan Documents.

Appears in 1 contract

Samples: Credit Agreement (Cdi Corp)

The Administrative Agent. 7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc. (a) Each ~~of the Lender Parties~~ Grantor hereby irrevocably constitutes and appoints the Administrative Agent and any officer or agent thereof, with full power of substitution, as its ~~agent hereunder~~ true and ~~under~~ lawful attorney-in-fact with full irrevocable power and authority in the ~~other Loan Documents~~ place and ~~authorizes~~ stead of such Grantor and in the ~~Administrative Agent to take~~ name of such ~~actions on~~ Grantor or in its ~~behalf~~own name, ~~including execution~~ for the purpose of ~~the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by~~ carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the ~~Loan Documents~~purposes of this Agreement, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agentand, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of the Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without without limiting the generality of the foregoing, each Grantor hereby gives the Administrative Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following: (ai) in the name of such Grantor or its own name, or otherwise, take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable or Contract or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Administrative Agent for the purpose of collecting any and all such moneys due under any Receivable or Contract or with respect to any other Collateral whenever payable; (ii) in the case of any Intellectual Property, execute and deliver, and have recorded, any and all agreements, instruments, documents and papers as the Administrative Agent may reasonably request to evidence the Administrative Agent's and Lenders' security interest in such Intellectual Property and the goodwill and intangibles of such Grantor relating thereto or represented thereby; (iii) pay or discharge taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof; (iv) execute, in connection with any sale provided for in Section 6.6, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and (1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Administrative Agent or as the Administrative Agent shall ~~not be subject~~ direct; (2) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (3) sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (5) defend any suit, action or proceeding brought against such Grantor with respect to any ~~fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing~~Collateral; (b6) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Administrative Agent may deem appropriate; (7) assign any Copyright, Patent or Trademark (along with the goodwill of the business to which any such Copyright, Patent or Trademark pertains), throughout the world for such term or terms, on such conditions, and in such manner, as the Administrative Agent shall ~~not have~~ in its sole discretion determine; and (8) generally, sell, transfer, pledge and make any ~~duty~~ agreement with respect to ~~take~~ or otherwise deal with any ~~discretionary action or exercise any discretionary powers, except discretionary rights~~ of the Collateral as fully and ~~powers expressly contemplated by the Loan Documents that~~ completely as though the Administrative Agent ~~is required~~ were the absolute owner thereof for all purposes, and do, at the Administrative Agent's option and such Grantor's expense, at any time, or from time to ~~exercise~~ time, all acts and things which the Administrative Agent deems necessary to protect, preserve or realize upon the Collateral and the Administrative Agent's and the Lenders' security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do. Anything in ~~writing as directed by~~ this Section 7.1 to 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); and (c) except as expressly set forth in the Loan Documentscontrary notwithstanding, the Administrative Agent agrees that it will not exercise any rights under the power of attorney provided for in this Section 7.1 unless an Event of Default shall ~~not~~ have occurred and be continuing. (b) If any ~~duty~~ Grantor fails to ~~disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower~~ perform or ~~any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or~~ comply with any of its ~~Affiliates in~~ agreements contained herein, the Administrative Agent, at its option, but without any ~~capacity.~~ obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement. (c) The expenses of the Administrative Agent ~~shall not be liable for any action taken or not taken by it~~ incurred in connection 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~~ actions undertaken as provided in this Section ~~9.02~~7.1, together with interest thereon at a rate per annum equal to the rate per annum at which interest would then be payable on Revolving Loans that are Base Rate Loans (which rate shall increase to the rate applicable to such Loans that are past due for periods after the date that is 5 days after demand for payment has been made upon the Borrower by the Administrative Agent) ~~or in~~ under the ~~absence~~ Credit Agreement, from the date of ~~its own gross negligence or willful misconduct. The~~ payment by the Administrative Agent to the date reimbursed by the relevant Grantor, shall be ~~deemed not to have knowledge of any Default unless and until written notice thereof is given~~ payable by such Grantor to the Administrative Agent by the Borrower Representative or a Lender Party, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality, validity, enforceability, effectiveness, adequacy or genuineness of any Loan Document or any other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; or (vii) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication believed by it to be genuine and correct, and to have been authorized, signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made or authorized by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Company (if such successor is not a Lender). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company. 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, obligations and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 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. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; demand. (d) ~~it will keep~~ Each Grantor hereby ratifies all ~~Reports confidential~~ that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision agencies contained in this ~~Agreement, it will pay~~ Agreement are coupled with an interest and ~~protect,~~ are irrevocable until this Agreement is terminated and ~~indemnify, defend, and hold~~ the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lendersecurity interests created hereby are released.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Appleton Papers Inc/Wi)

Appears in 1 contract

Samples: Credit Agreement (Libbey Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as ~~its agent hereunder and~~ Administrative Agent under the ~~other~~ Loan ~~Documents~~ Documents, 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of the Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02); , provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose it to liability or be contrary to any Loan Document or applicable law, rule or regulation, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of the Subsidiaries that is communicated to or obtained by ~~the bank serving as Administrative Agent~~ it or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful ~~misconduct~~misconduct (as determined by a final, non-appealable judgment of a court of competent jurisdiction). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative Agent~~ it by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document;~~ herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ sufficiency validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~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 it. Notwithstanding anything herein to the contrary, the Administrative ~~Agent~~Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof, any Exchange Rate or any US Dollar Equivalent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or ~~communication~~ intranet website posting or other distribution) believed by it to be genuine and ~~correct, and~~ to have been ~~authorized~~signed, ~~signed~~ sent or ~~sent~~ otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by ~~the Administrative Agent~~it. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through ~~their~~ its respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 9.03 shall apply to any such sub-agent and to the Related Parties of the Administrative 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. The Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or Issuing Banks. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, with the Borrower’s approval (so long as no Event of Default has occurred and is continuing) to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor Administrative Agent shall have been so appointed ~~by the Required Lenders~~ and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, ~~which shall be reasonably satisfactory~~ the Required Lenders may, to the ~~Company~~extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, with the Borrower’s approval, appoint a successor. If no such successor shall have been so appointed and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. 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, obligations~~ privileges and duties of the retiring (or ~~retired)~~ removed Administrative Agent, and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation or removal hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed 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. Each Lender ~~Party~~ and Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Arranger or any other Lender ~~Party~~ 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 ~~Party~~ and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Arranger or any other Lender ~~Party~~ 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. ~~Each Lender Party hereby agrees~~ The parties agree that ~~(a) it has requested a copy of each Report prepared by or on behalf~~ none of the ~~Administrative Agent; (b)~~ Arrangers, the ~~Administrative~~ Syndication Agents or the Documentation Agent ~~(i) makes no representation~~ referred to on the cover page of this Agreement shall, in its capacity as such, have any duties or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower responsibilities under this Agreement or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying LenderLoan Document.

Appears in 1 contract

Samples: Credit Agreement (Broadridge Financial Solutions, Inc.)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder~~ both as administrative agent and ~~under the other Loan Documents~~ collateral 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 hereof and the ~~Loan~~ other Financing Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder and under the other Financing Documents shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent,~~ Agent and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein or in the ~~Loan~~ other Financing Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby or thereby 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); , and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for ~~the~~ any failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document;~~ this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~with any Loan Document;~~ herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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. With respect to the release of Collateral, the Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any property covered by this Agreement or the other Financing Documents (i) upon termination or expiration of the Commitments, the payment and satisfaction of all obligations arising with respect to the Loans, all fees and expenses, the expiration or termination of all the Letters of Credit and the reimbursement of all LC Disbursements; or (ii) constituting property being sold or disposed of in compliance with the provisions of the Financing Documents (and the Administrative Agent may rely in good faith conclusively on any certificate stating that the property is being sold or disposed of in compliance with the provisions of the Financing Documents, without further inquiry); provided, however, that (x) the Administrative Agent shall not be required to execute any release on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair any Liens upon all interests retained, all of which shall continue to constitute part of the property covered by the Financing Documents. With respect to perfecting security interests in Collateral which, in accordance with Article 9 of the Uniform Commercial Code or any comparable provision of any Lien perfection statute in any applicable jurisdiction, can be perfected only by possession, each Lender hereby appoints each other Lender its agent for the purpose of perfecting such interest. Should any Lender (other than the Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the Administrative Agent, and, promptly upon the Administrative Agent’s request, shall deliver such Collateral to the Administrative Agent or in accordance with the Administrative Agent’s instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce this Agreement or any other Financing Document or to realize upon any Collateral for the Loans, it being understood and agreed that such rights and remedies may be exercised only by or with the approval of the Administrative Agent. In the event that a petition seeking relief under Title 11 of the United States Code or any other Federal, state or foreign bankruptcy, insolvency, liquidation or similar law is filed by or against the Borrower or any other Person obligated under the Financing Document, the Administrative Agent is authorized, to the fullest extent permitted by applicable law, to file a proof of claim on behalf of itself and the Lenders in such proceeding for the total amount of obligations owed by such Person. With respect to any such proof of claim which the Administrative Agent may file, each Lender acknowledges that without reliance on such proof of claim, such Lender shall make its own evaluation as to whether an individual proof of claim must be filed in respect of such obligations owed to such Lender and, if so, take the steps necessary to prepare and timely file such individual claim. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, with the approval of the Borrower (not to be unreasonably withheld, except that no such approval shall be required upon the occurrence and continuance of an Event of Default), to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Bank, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial bank, which shall be reasonably satisfactory to the Company~~bank with such an office. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender ~~Party hereby agrees that (a) it has requested a copy~~ acknowledges the potential conflict of interest of each ~~Report prepared by or on behalf~~ other Lender as a result of Lenders holding disproportionate interests in the ~~Administrative~~ Loans, and expressly consents to and waives any claim based upon such conflict of interest. The parties hereto agree that the titles Syndication Agent~~; (b)~~ , Documentation Agent and Managing Agent are honorary and confer no duties upon such agents except as a Lender hereunder, provided that the ~~Administrative~~ Syndication Agent, the Documentation Agent ~~(i) makes no representation or warranty, express or implied, as~~ and the Managing Agent shall be entitled to the ~~completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report~~ rights and ~~(ii) shall not be liable~~ benefits specifically provided for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lenderherein.

Appears in 1 contract

Samples: Revolving Credit Agreement (Usec Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Company or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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~~10.02); , and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Borrower~~ the Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of 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~~10.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative~~ Company or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document;~~ herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein or therein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrowers~~a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Lenders and the ~~Borrower Representative~~Company. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Company, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial bank~~ Lender with an office in New York, New York or an Affiliate of ~~any such commercial bank, which shall be reasonably satisfactory to the Company~~a Lender. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Company and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 10.03 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as Notwithstanding anything herein to the ~~completeness or accuracy~~ contrary the Sole Bookrunner and the Sole Lead Arranger, the Syndication Agent and the Co-Documentation Agents named on the cover page of ~~any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii)~~ this Agreement shall not ~~be liable for~~ have any ~~information contained in any Report; (c) the Reports are not comprehensive audits~~ duties or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in liabilities under this Agreement, ~~it will pay and protect~~except in their capacity, ~~and indemnify~~if any, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as ~~the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender~~Lenders.

Appears in 1 contract

Samples: Credit Agreement (1 800 Flowers Com Inc)

The Administrative Agent. Each of the Lenders and the Issuing Lender ~~Parties~~ hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Company or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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~~10.02); , and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Borrower~~ the Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of 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~~10.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative~~ Company or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document;~~ herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein or therein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrowers~~a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Lender and the ~~Borrower Representative~~Company. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Company, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Lender, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial bank~~ Lender with an office in New York, New York or an Affiliate of ~~any such commercial bank, which shall be reasonably satisfactory to the Company~~a Lender. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Company and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 10.03 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as Notwithstanding anything herein to the ~~completeness or accuracy~~ contrary the Sole Bookrunner and the Sole Lead Arranger and Co-Documentation Agents named on the cover page of ~~any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii)~~ this Agreement shall not ~~be liable for~~ have any ~~information contained in any Report; (c) the Reports are not comprehensive audits~~ duties or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in liabilities under this Agreement, ~~it will pay and protect~~except in their capacity, ~~and indemnify~~if any, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as ~~the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender~~Lenders.

Appears in 1 contract

Samples: Credit Agreement (Griffon Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Company or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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); , and (c) except as expressly set forth herein or in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any ~~Borrower or any~~ of the ~~Subsidiaries~~ Group Members that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower Representative~~ Company or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~with any Loan Document;~~ herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or in any other Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent (and which may include any of its Affiliates and, without limiting the foregoing, it is agreed that X.X. Xxxxxx Europe Limited will act for the purposes of performing certain administrative functions with respect to Eurocurrency Borrowings, until otherwise determined by the Administrative Agent). The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs of this Section shall apply to any such ~~sub-agent~~ subagent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Lenders and the ~~Borrower Representative~~Company. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Company, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Company and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as Notwithstanding anything herein to the ~~completeness or accuracy~~ contrary, the Joint Lead Arrangers and Joint Bookrunners, the Syndication Agent and the Documentation Agents named on the cover page of ~~any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii)~~ this Agreement shall not ~~be liable for~~ have any ~~information contained in any Report; (c) the Reports are not comprehensive audits~~ duties or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in liabilities under this Agreement, ~~it will pay and protect~~except in their capacity, ~~and indemnify~~if any, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as ~~the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender~~Lenders.

Appears in 1 contract

Samples: Credit Agreement (NYSE Euronext)

The Administrative Agent. Section 8.01 Administrative Agent's Appointment as Attorney-in-Fact, Etc. (a) Each ~~of the Lender Parties~~ Grantor hereby irrevocably constitutes and appoints the Administrative Agent and any officer or agent thereof, with full power of substitution, as its ~~agent hereunder~~ true and ~~under~~ lawful attorney-in-fact with full irrevocable power and authority in the ~~other Loan Documents~~ place and ~~authorizes~~ stead of such Grantor and in the ~~Administrative Agent to take~~ name of such ~~actions on~~ Grantor or in its ~~behalf~~own name, ~~including execution~~ for the purpose of ~~the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by~~ carrying out the terms of this Agreement, to take any and all reasonably appropriate action and to execute any and all documents and instruments which may be reasonably necessary or desirable to accomplish the ~~Loan Documents~~purposes of this Agreement, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agentand, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of the Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without without limiting the generality of the foregoing, each Grantor hereby gives the Administrative Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following: (ai) unless being disputed under Section 9.03(a) of the Term Loan Agreement, pay or discharge taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof; (ii) execute, in connection with any sale provided for in Section 7.04 or Section 7.05, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and (A) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Administrative Agent or as the Administrative Agent shall ~~not be subject~~ direct; (B) take possession of and indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Account, Instrument, General Intangible, Chattel Paper or Payment Intangible or with respect to any ~~fiduciary~~ other Collateral, and to file any claim or to take any other ~~implied duties, regardless~~ action or proceeding in any court of ~~whether a Default has occurred and is continuing; (b)~~ law or equity or otherwise deemed appropriate by the Administrative Agent ~~shall not have~~ for the purpose of collecting any ~~duty~~ all such moneys due under any Account, Instrument or General Intangible or with respect to ~~take~~ any ~~discretionary~~ other Collateral whenever payable; (C) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (D) sign and indorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (E) receive, change the address for delivery, open and dispose of mail addressed to any Grantor, and to execute, assign and indorse negotiable and other instruments for the payment of money, documents of title or other evidences of payment, shipment or storage for any form of Collateral on behalf of and in the name of any Grantor; (F) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (G) defend any suit, action or ~~exercise~~ proceeding brought against such Grantor with respect to any ~~discretionary powers~~Collateral; (H) settle, ~~except discretionary rights and powers expressly contemplated by the Loan Documents that~~ compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as 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)~~may deem appropriate; and (cI) ~~except~~ generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as ~~expressly set forth~~ fully and completely as though the Administrative Agent were the absolute owner thereof for all purposes, and do, at the Administrative Agent's option and such Grantor's expense, at any time, or from time to time, all acts and things which the Administrative Agent deems necessary to protect, preserve or realize upon the Collateral and the Administrative Agent's and the other Secured Parties' security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do. Anything in this Section 8.01(a) to the ~~Loan Documents~~contrary notwithstanding, the Administrative Agent agrees that it will not exercise any rights under the power of attorney provided for in this Section 8.01(a) unless an Event of Default shall ~~not~~ have occurred and be continuing. (b) If any ~~duty~~ Grantor fails to ~~disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower~~ perform or ~~any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or~~ comply with any of its ~~Affiliates in~~ agreements contained herein within the applicable grace periods, the Administrative Agent, at its option, but without any ~~capacity.~~ obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement. (c) The expenses of the Administrative Agent ~~shall not be liable for any action taken or not taken by it~~ incurred in connection 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~~ actions undertaken as provided in this Section ~~9.02) or in~~ 8.01, together with interest thereon at the ~~absence~~ Post-Default Rate from the date of ~~its own gross negligence or willful misconduct. The~~ payment by the Administrative Agent to the date reimbursed by the relevant Grantor, shall be ~~deemed not to have knowledge of any Default unless and until written notice thereof is given~~ payable by such Grantor to the Administrative Agent by the Borrower Representative or a Lender Party, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality, validity, enforceability, effectiveness, adequacy or genuineness of any Loan Document or any other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; or (vii) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication believed by it to be genuine and correct, and to have been authorized, signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made or authorized by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Company (if such successor is not a Lender). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company. 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, obligations and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 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. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; demand. (d) ~~it will keep~~ Each Grantor hereby ratifies all ~~Reports confidential~~ that said attorneys shall lawfully do or cause to be done by virtue and ~~strictly for its internal use~~in compliance hereof. All powers, authorizations and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision agencies contained in this ~~Agreement, it will pay~~ Agreement are coupled with an interest and ~~protect,~~ are irrevocable until this Agreement is terminated and ~~indemnify, defend, and hold~~ the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lendersecurity interests created hereby are released.

Appears in 1 contract

Samples: Second Lien Term Loan Agreement (Petrohawk Energy Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including (in the case of the Administrative Agent) 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as the Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; , or (~~vii~~vi) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the ~~Administrative~~ applicable Agent. Subject to the appointment and acceptance of a successor ~~Administrative~~ Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, ~~privileges, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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 the Administrative Agent. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 Syndication Agent or 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 ~~Party~~ hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. Except with respect to the exercise of setoff rights of any Lender, in accordance with Section 9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or with respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (aexcept as otherwise set forth herein in case of the Administrative Agent) ~~it has requested a copy of each Report prepared by or~~ authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the ~~Administrative Agent; (b)~~ Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Holders of Secured Obligations within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Holder of Secured Obligations (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Holders of Secured Obligations upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Holders of Secured Obligations any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Holders of Secured Obligations. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) ~~makes no representation or warranty, express or implied,~~ as ~~to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained~~ described in ~~or relating to a Report and~~ Section 9.02(c); (ii) ~~shall not~~ as permitted by, but only in accordance with, the terms of the applicable Loan Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be ~~liable for~~ approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any ~~information contained~~ time, the Lenders will confirm in ~~any Report; (c)~~ writing the ~~Reports are not comprehensive audits~~ Administrative Agent’s authority to release particular types or ~~examinations~~items of Collateral pursuant hereto. The Borrower, on its behalf and on behalf of its Subsidiaries, and ~~that any Person performing any field examination will inspect only specific information regarding~~ each Lender, on its behalf and on the ~~Borrowers and will rely significantly upon~~ behalf of its affiliated Holders of Secured Obligations, hereby irrevocably constitute the ~~Borrowers’ books and records,~~ Administrative Agent as ~~well as on representations~~ the holder of an irrevocable power of attorney (fondé de pouvoir within the meaning of Article 2692 of the ~~Borrowers’ personnel~~ Civil Code of Québec) in order to hold hypothecs and security granted by the Borrower or any Subsidiary on property pursuant to the laws of the Province of Quebec to secure obligations of the Borrower or any Subsidiary under any bond, debenture or similar title of indebtedness issued by the Borrower or any Subsidiary in connection with this Agreement, and agree that the Administrative Agent ~~undertakes no obligation~~ may act as the bondholder and mandatary with respect to ~~update~~any bond, ~~correct~~ debenture or ~~supplement~~ similar title of indebtedness that may be issued by the ~~Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any~~ Borrower or any ~~other Person except as otherwise permitted pursuant to~~ Subsidiary and pledged in favor of the Holders of Secured Obligations in connection with this Agreement; . Notwithstanding the provisions of Section 32 of the An Act respecting the special powers of legal persons (Quebec), JPMorgan Chase Bank, National Association as Administrative Agent may acquire and ~~(e) without limiting~~ be the ~~generality~~ holder of any ~~other indemnification provision contained~~ bond issued by the Borrower or any Subsidiary in connection with this ~~Agreement~~Agreement (i.e., ~~it will pay and protect, and indemnify, defend,~~ the fondé de pouvoir may acquire and hold the first bond issued under any deed of hypothec by the Borrower or any Subsidiary). The Administrative Agent is hereby authorized to execute and deliver any documents necessary or appropriate to create and perfect the rights of pledge for the benefit of the Holders of Secured Obligations including a right of pledge with respect to the entitlements to profits, the balance left after winding up and the voting rights of the Borrower as ultimate parent of any subsidiary of the Borrower which is organized under the laws of the Netherlands and the Equity Interests of which are pledged in connection herewith (a “Dutch Pledge”). Without prejudice to the provisions of this Agreement and the other Loan Documents, the parties hereto acknowledge and agree with the creation of parallel debt obligations of the Borrower or any relevant Subsidiary as will be described in any Dutch Pledge (the “Parallel Debt”), including that any payment received by the Administrative Agent in respect of the Parallel Debt will - conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application - be deemed a satisfaction of a pro rata portion of the corresponding amounts of the Obligations, and any payment to the Holders of Secured Obligations in satisfaction of the Obligations shall - conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application - be deemed as satisfaction of the corresponding amount of the Parallel Debt. The parties hereto acknowledge and agree that, for purposes of a Dutch Pledge, any resignation by the Administrative Agent is not effective until its rights under the Parallel Debt are assigned to the successor Administrative Agent. The Administrative Agent shall administer any Collateral Document which is governed by German law and is a pledge (Pfandrecht) or otherwise transferred to any Holder of Secured Obligations under an accessory security right (akzessorische Sicherheit) in the name and on behalf of the Holder of Secured Obligations. In relation to any Collateral Document governed by the laws of Germany, each party hereby authorizes the Administrative Agent to accept as its representative any pledge or other ~~Person preparing a Report harmless from~~ creation of any accessory security right made to such party in relation to this Agreement and ~~against~~to agree to and execute on its behalf as its representative amendments, ~~the claims, actions, proceedings, damages, costs, expenses,~~ supplements and other ~~amounts (including reasonable attorney fees) incurred~~ alterations to any Collateral Document governed by as the ~~direct~~ laws of Germany which creates a pledge or ~~indirect result~~ any other accessory security right and to release on behalf of such party any ~~third parties who might obtain all or part~~ Collateral Document governed by the laws of ~~any Report through~~ Germany in accordance with the ~~indemnifying Lender~~provisions herein and/or the provisions in the relevant German law governed pledge agreement.

Appears in 1 contract

Samples: Amendment and Restatement Agreement (Dean Foods Co)

The Administrative Agent. Each of the Lenders and the Issuing Lender ~~Parties~~ hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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~~10.02); , and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of 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~~10.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document;~~ herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein or therein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Lender and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Lender, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial bank~~ Lender with an office in New York, New York or an Affiliate of ~~any such commercial bank, which shall be reasonably satisfactory to the Company~~a Lender. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 10.03 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as Notwithstanding anything herein to the ~~completeness or accuracy~~ contrary the Sole Bookrunner and the Sole Lead Arranger, the Syndication Agent and the Documentation Agent named on the cover page of ~~any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii)~~ this Agreement shall not ~~be liable for~~ have any ~~information contained in any Report; (c) the Reports are not comprehensive audits~~ duties or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in liabilities under this Agreement, ~~it will pay and protect~~except in their capacity, ~~and indemnify~~if any, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as ~~the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender~~Lenders.

Appears in 1 contract

Samples: Credit Agreement (HMS Holdings Corp)

The Administrative Agent. Each of the Lenders and the Issuing Lender ~~Parties~~ hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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~~10.02); , and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of 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~~10.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document;~~ herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein or therein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Lender and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Lender, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial bank~~ Lender with an office in New York, New York or an Affiliate of ~~any such commercial bank, which shall be reasonably satisfactory to the Company~~a Lender. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 10.03 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as Notwithstanding anything herein to the ~~completeness or accuracy~~ contrary the Arranger, the Syndication Agent and the Co-Documentation Agents named on the cover page of ~~any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii)~~ this Agreement shall not ~~be liable for~~ have any ~~information contained in any Report; (c) the Reports are not comprehensive audits~~ duties or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in liabilities under this Agreement, ~~it will pay and protect~~except in their capacity, ~~and indemnify~~if any, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as ~~the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender~~Lenders.

Appears in 1 contract

Samples: Credit Agreement (Griffon Corp)

Appears in 1 contract

Samples: Credit Agreement (DG FastChannel, Inc)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including (in the case of the Administrative Agent) 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as the Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; , or (~~vii~~vi) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the ~~Administrative~~ applicable Agent. Subject to the appointment and acceptance of a successor ~~Administrative~~ Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Bank, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, ~~privileges, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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 the Administrative Agent. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 Syndication Agent, Documentation Agent, co-agent or other similar title shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as a Syndication Agent, Documentation Agent, co-agent or other similar title, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. Except with respect to the exercise of setoff rights of any Lender, in accordance with Section 9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or with respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. 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. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the UCC. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 9.02(c); (ii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. The Administrative Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected, or insured or has been encumbered, or that the Liens granted to the Administrative Agent therein have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Administrative Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Administrative Agent may act in any manner it may deem appropriate, in its sole discretion given the Administrative Agent’s own interest in the Collateral in its capacity as one of the Lenders and that the Administrative Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing. Each Lender hereby appoints each other Lender as its agent for the purpose of perfecting Liens, for the benefit of the Administrative Agent and the Lenders, in assets which, in accordance with Article 9 of the UCC or any other applicable law can be perfected only by possession. Should any Lender (other than the Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the Administrative Agent thereof, and, promptly upon the Administrative Agent’s request therefor shall deliver such Collateral to the Administrative Agent or otherwise deal with such Collateral in accordance with the Administrative Agent’s instructions. Each Lender hereby agrees ~~that~~ as follows: (a) such Lender is deemed to have requested that the Administrative Agent furnish such Lender, promptly after it ~~has requested~~ becomes available, a copy of each ~~Report~~ report (the “Reports”) prepared by or on behalf of the Administrative Agent; (b) such Lender expressly agrees and acknowledges that neither the Administrative Agent nor any Related Party (i) makes no any representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained ~~therein~~ therein, or ~~any inaccuracy or omission contained in or relating to a Report and~~ (ii) shall ~~not~~ be liable for any information contained in any Report; (c) such Lender expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, ~~and~~ that the Administrative Agent, any ~~Person~~ of its Related Parties or any other party performing any ~~field~~ audit or examination will inspect only specific information regarding the ~~Borrowers~~ Loan Parties and will rely significantly upon the ~~Borrowers~~Loan Parties’ books and records, as well as on representations of the ~~Borrowers~~Loan Parties’ personnel and that the Administrative Agent ~~undertakes~~ and its Related Parties undertake no obligation to update, correct or supplement the Reports; (d) ~~it will~~ such Lender agrees to keep all Reports confidential and strictly for its internal use, ~~and it will~~ not share the Report with any ~~Borrower or~~ Loan Party and not to distribute any Report to any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, ~~it will~~ such Lender agrees (i) that neither the Administrative Agent nor any of its Related Parties shall be liable to such Lender or any other Person receiving a copy of the Report for any inaccuracy or omission contained in or relating to a Report, (ii) to conduct its own due diligence investigation and make credit decisions with respect to the Loan Parties based on such documents as such Lender deems appropriate without any reliance on the Reports or on the Administrative Agent or any of its Related Parties, (iii) to hold the Administrative Agent and any such other Person preparing a Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying Lender may reach or draw from any Report in connection with any Credit Extensions that the indemnifying Lender has made or may make to the Loan Parties, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, any Obligations and (iv) to pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by the Administrative Agent and any such other Person preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Lenders hereby empower and authorize the Administrative Agent to execute and deliver to the Loan Parties on their behalf the Collateral Documents and all related agreements, documents or instruments as shall be necessary or appropriate to effect the purposes of the Collateral Documents. The Lenders hereby empower and authorize the Administrative Agent to execute and deliver to the Loan Parties on their behalf any agreements, documents or instruments as shall be necessary or appropriate to effect any releases or subordinations of Collateral which shall be permitted by the terms hereof or of any other Loan Document or which shall otherwise have been approved by the Required Lenders or all the Lenders, as the case may be, in writing.

Appears in 1 contract

Samples: Credit Agreement (Asset Acceptance Capital Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and neither Borrower shall have rights as a third party beneficiary of any of such provisions. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ U.S. Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary or believed by the Administrative Agent in good faith to be necessary under the circumstances as provided in Section 2.05(j) or Section 9.02); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the U.S. Borrower or any ~~of the Subsidiaries~~ Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or any of 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~~2.05(j) or Section 9.02 or believed by the Administrative Agent in good faith to be necessary) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~the~~ either Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~with any Loan Document;~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document;~~ Document or the occurrence of any Default, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; , or (~~vii~~vi) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Adobe pdf file, Internet or ~~communication~~ intranet website posting or other distribution) believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Loan Parties), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent, provided that the Administrative Agent shall remain liable for the performance of such obligations and duties. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties, provided that the Administrative Agent shall remain liable for the performance of such obligations and duties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative 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. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, amendment, renewal or extension 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~~Agent may presume that such condition is satisfactory to such Lender or an 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, amendment, renewal or extension of such Letter of Credit. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~by notifying~~ upon notice to the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~U.S. Borrower. Upon any such resignation, the Required Lenders shall have the ~~right to appoint a successor~~ right, with the consent of the ~~Company (if such successor is not~~ Borrowers in the absence of a ~~Lender)~~continuing Event of Default, to appoint a successor. If no successor shall have been so appointed by the U.S. Borrower and the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Bank, appoint a successor Administrative ~~Agent, which~~ Agent that shall be a commercial bank with an office in New York, New York, or an Affiliate of any such commercial bank, ~~which shall be reasonably satisfactory~~ in either case, acceptable to the ~~Company~~U.S. Borrower in the absence of a continuing Event of Default (such acceptance not to be unreasonably withheld or delayed). 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from all its duties and obligations ~~hereunder~~under the Loan Documents. The fees payable by the ~~Borrowers~~ U.S. Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed in writing between the ~~Borrowers~~ U.S. Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-agents~~ sub‑agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it the retiring Administrative Agent was acting as Administrative Agent. Each Lender ~~Party~~ and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or any of their Related Parties 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 ~~Party~~ and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or any of their Related Parties 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~~ thereunder. Notwithstanding anything herein to the contrary, none of the Arrangers and the other agents listed on the cover page hereof shall have any powers, duties or responsibilities under any Loan Document, except in its capacity, as applicable, as the Administrative Agent, a Lender or an Issuing Bank hereunder. In furtherance of the foregoing and not in limitation thereof, no Swap Agreement the obligations under which constitute Secured Obligations will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement or any other Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Swap Agreement shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph. Each Lender ~~Party~~ hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the ~~Borrowers~~ Loan Parties and will rely significantly upon the ~~Borrowers~~Loan Parties’ books and records, as well as on representations of the ~~Borrowers~~Loan Parties’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, ~~and it will~~ not share the Report with any ~~Borrower~~ Loan Party or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by such Person as the direct or indirect result of ~~any third parties who might obtain all or part~~ disclosure of any such Report ~~through~~ to a third party by such indemnifying Lender in violation of the ~~indemnifying Lender~~terms hereof.

Appears in 1 contract

Samples: Credit Agreement (Usg Corp)

The Administrative Agent. Each of the Lenders and the Issuing Lender ~~Parties~~ hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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~~10.02); , and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of 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) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower Representative or a Lender Party, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality, validity, enforceability, effectiveness, adequacy or genuineness of any Loan Document or any other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; or (vii) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication believed by it to be genuine and correct, and to have been authorized, signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made or authorized by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Company (if such successor is not a Lender). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company. 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, obligations and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 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. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.in

Appears in 1 contract

Samples: Credit Agreement (Griffon Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Loan Parties or any Subsidiary of ~~the Subsidiaries~~ a Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any ~~Borrower~~ Loan Party or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own bad faith, gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower Representative or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; , or (~~vii~~vi) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, with the Company’s consent (not to be unreasonably withheld or delayed), to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a commercial bank or an Affiliate of any such commercial bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, ~~Sections~~ Section 2.17(d) 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender ~~Party~~ hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the ~~Borrowers~~ Loan Parties and will rely significantly upon the ~~Borrowers~~Loan Parties’ books and records, as well as on representations of the ~~Borrowers~~Loan Parties’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, ~~and it will~~ not share the Report with ~~any Borrower~~ or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Joint Bookrunners, Joint Lead Arrangers, the Co-Documentation Agents and the Syndication Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: Credit Agreement (Interline Brands, Inc./De)

Appears in 1 contract

Samples: Credit Agreement (Shake Shack Inc.)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and neither Borrower shall have rights as a third party beneficiary of any of such provisions. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ U.S. Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary or believed by the Administrative Agent in good faith to be necessary under the circumstances as provided in Section 2.05(j) or Section 9.02); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the U.S. Borrower or any ~~of the Subsidiaries~~ Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or any of 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~~2.05(j) or Section 9.02 or believed by the Administrative Agent in good faith to be necessary) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~the~~ either Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~with any Loan Document;~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document;~~ Document or the occurrence of any Default, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; , or (~~vii~~vi) 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. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Competitors. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Competitor or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Competitor. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Adobe pdf file, Internet or ~~communication~~ intranet website posting or other distribution) believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Loan Parties), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent, provided that the Administrative Agent shall remain liable for the performance of such obligations and duties. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties, provided that the Administrative Agent shall remain liable for the performance of such obligations and duties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative 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. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, amendment, renewal or extension 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~~Agent may presume that such condition is satisfactory to such Lender or an 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, amendment, renewal or extension of such Letter of Credit. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~by notifying~~ upon notice to the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower Representative~~U.S. Borrower. Upon any such resignation, the Required Lenders shall have the ~~right to appoint a successor~~ right, with the consent of the ~~Company (if such successor is not~~ Borrowers in the absence of a ~~Lender)~~continuing Event of Default, to appoint a successor. If no successor shall have been so appointed by the U.S. Borrower and the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Bank, appoint a successor Administrative ~~Agent, which~~ Agent that shall be a commercial bank with an office in New York, New York, or an Affiliate of any such commercial bank, ~~which shall be reasonably satisfactory~~ in either case, acceptable to the ~~Company~~U.S. Borrower in the absence of a continuing Event of Default (such acceptance not to be unreasonably withheld or delayed). 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from all its duties and obligations ~~hereunder~~under the Loan Documents. The fees payable by the ~~Borrowers~~ U.S. Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 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. Each Lender ~~Party~~ and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or any of their Related Parties 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 ~~Party~~ and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ or any of their Related Parties 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~~ thereunder. Notwithstanding anything herein to the contrary, none of the Arrangers and the other agents listed on the cover page hereof shall have any powers, duties or responsibilities under any Loan Document, except in its capacity, as applicable, as the Administrative Agent, a Lender or an Issuing Bank hereunder. In furtherance of the foregoing and not in limitation thereof, no Swap Agreement the obligations under which constitute Secured Obligations will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement or any other Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Swap Agreement shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph. Each Lender ~~Party~~ hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the ~~Borrowers~~ Loan Parties and will rely significantly upon the ~~Borrowers~~Loan Parties’ books and records, as well as on representations of the ~~Borrowers~~Loan Parties’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, ~~and it will~~ not share the Report with any ~~Borrower~~ Loan Party or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by such Person as the direct or indirect result of ~~any third parties who might obtain all or part~~ disclosure of any such Report ~~through~~ to a third party by such indemnifying Lender in violation of the ~~indemnifying Lender~~terms hereof.

Appears in 1 contract

Samples: Credit Agreement (Usg Corp)

The Administrative Agent. Each of the Lenders and the Issuing Lender ~~Parties~~ hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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~~10.02); , and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of 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~~10.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document;~~ herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document;~~ herein or therein, (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~sub-agents~~ sub‑agents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-agent~~ sub‑agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~sub-agent~~ sub‑agent and to the Related Parties of the Administrative Agent and any such ~~sub-agent~~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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Lender and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~ right, in consultation with the Borrower, to appoint a ~~successor with the consent of the Company (if such successor is not a Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Lender, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial bank~~ Lender with an office in New York, New York or an Affiliate of ~~any such commercial bank, which shall be reasonably satisfactory to the Company~~a Lender. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 10.03 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as Notwithstanding anything herein to the ~~completeness or accuracy~~ contrary the Arranger, the Syndication Agent and the Co-Documentation Agents named on the cover page of ~~any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii)~~ this Agreement shall not ~~be liable for~~ have any ~~information contained in any Report; (c) the Reports are not comprehensive audits~~ duties or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in liabilities under this Agreement, ~~it will pay and protect~~except in their capacity, ~~and indemnify~~if any, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as ~~the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender~~Lenders.

Appears in 1 contract

Samples: Credit Agreement (Griffon Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the Issuing Banks hereby irrevocably appoints ~~the Administrative Agent~~ JPMorgan Chase Bank, N.A., and its successors to serve as ~~its~~ administrative agent ~~hereunder and~~ under the ~~other~~ Loan Documents 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings, the ~~Borrowers~~ Parent Borrower or any ~~of the Subsidiaries~~ other Subsidiary or ~~other~~ Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Borrower~~ Holdings or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) or in the absence of its own bad faith, gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the ~~Borrower Representative~~ Parent Borrower, Purchasing or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~with any Loan Document;~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Parent Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 ~~the~~ Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~the~~ each Issuing Bank and the ~~Borrower Representative~~Parent Borrower. Upon any such resignation, the Required Lenders shall have the ~~right to appoint a successor~~ right, with the consent of the ~~Company~~ Parent Borrower, to appoint a successor (if provided, that such ~~successor~~ Parent Borrower consent (i) shall not be unreasonably withheld and (ii) shall not be required if, at the time of such appointment, an Event of Default has occurred and is ~~not a Lender~~continuing). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Parent Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Parent Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ 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. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ 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. The Joint Bookrunners, Lead Arrangers and Syndication Agent (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under this Agreement or any other documents related thereto. Each Lender ~~Party~~ hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or field examinations, and that any Person performing any field examination will inspect only specific information regarding the ~~Borrowers~~ Loan Parties and will rely significantly upon the ~~Borrowers~~Loan Parties’ books and records, as well as on representations of the ~~Borrowers~~Loan Parties’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential in accordance with the requirements of Section 9.12 and strictly for its internal use, ~~and it will~~ not share the Report with any ~~Borrower~~ Loan Party or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, ~~the~~ any claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. Each of the Lenders hereby (a) authorizes and instructs the Administrative Agent to enter into an Intercreditor Agreement or a Collateral Cooperation Agreement, as applicable, if Indebtedness is incurred that is secured by Liens contemplated by clause (m) of Section 6.02 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement or such Collateral Cooperation Agreement, as applicable.

Appears in 1 contract

Samples: Credit Agreement (J C Penney Co Inc)

Appears in 1 contract

Samples: Credit Agreement (Shake Shack Inc.)

Appears in 1 contract

Samples: Credit Agreement (Veritas Software Technology Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and the LC Issuer hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, and on behalf of the Lenders, 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. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrowers~~ Borrower or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise 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~~8.2); , and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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~~8.2) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower ~~Representative~~ or a ~~Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; , (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of any Loan Document or any other agreement, instrument or document; , (viv) the creation, perfection or priority of Liens on the Collateral or the existence of the ~~Collateral;~~ Collateral or (~~vii~~vi) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent~~Agent or its counsel. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrowers~~Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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. The Administrative Agent may from time to time change any such designations and add any Affiliates of the Administrative ~~Agent~~Agent as parties hereto for purposes of being performing the duties to be performed by the Administrative Agent hereunder. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Issuing Bank~~ LC Issuer and the ~~Borrower Representative~~Borrower. Upon any such resignation, the Required Lenders shall have the right ~~to appoint a successor~~ (with the consent of the ~~Company~~ Borrower unless a Default has occurred and is continuing (if any such ~~successor is~~ consent of the Borrower not to be unreasonably withheld or delayed)), to appoint a ~~Lender)~~successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lender Parties~~Lenders and the LC Issuer, appoint a successor Administrative ~~Agent,~~ Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or an Affiliate of any such ~~commercial~~ bank~~, which shall be reasonably satisfactory to the Company~~. 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, obligations~~ privileges and duties of the retiring ~~(or retired)~~ Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrowers~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the Borrowers~~ such Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 9.6 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. Each Lender ~~Party~~ acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender ~~Party~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~Party also acknowledges that it will~~shall, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arranger or any other Lender ~~Party~~ and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other~~ Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or ~~thereunder~~thereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders identified in this Agreement as a Syndication Agent or a 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 ~~Party~~ hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as a Syndication Agent or a Documentation Agent, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraphs. Except with respect to the exercise of setoff rights of any Lender, including the LC Issuer, in accordance with the Agreement, the proceeds of which are applied in accordance with this Agreement and the other Loan Documents, and subject to the agreements in the second succeeding paragraph, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or other Loan Party with respect to any Loan Document without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. The Lenders, including the LC Issuer, are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (aexcept as otherwise set forth herein in case of the Administrative Agent) ~~it has requested a copy of each Report prepared by or~~ authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the ~~Administrative Agent; (b)~~ Lenders to enforce the ~~Administrative Agent (i) makes no representation~~ payment of the principal of and interest on any Loan or ~~warranty, express~~ any Facility LC after the date such principal or ~~implied, as~~ interest has become due and payable pursuant to the ~~completeness or accuracy~~ terms of this Agreement. The acknowledgments and agreements of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained Lender in this ~~Agreement, it will pay~~ Article X shall be deemed to be made by such Lender on behalf of itself and ~~protect,~~ its Affiliates. For purposes of such acknowledgements and ~~indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against~~agreements, the ~~claims, actions, proceedings, damages, costs, expenses,~~ term “Lender” shall include the LC Issuer and ~~other amounts (including reasonable attorney fees) incurred by as~~ the ~~direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying~~ Swing Line Lender.

Appears in 1 contract

Samples: Credit Agreement (Lancaster Colony Corp)

The Administrative Agent. Each of the Lenders and the Issuing Lender ~~Parties~~ hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrowers~~ Company or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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); and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of 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) 10.02 or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower Representative or a Lender Party, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality, validity, enforceability, effectiveness, adequacy or genuineness of any Loan Document or any other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; or (vii) 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. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication believed by it to be genuine and correct, and to have been authorized, signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made or authorized by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right to appoint a successor with the consent of the Company (if such successor is not a Lender). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lender Parties, appoint a successor Administrative Agent, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company. 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, obligations and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article, Sections 2.17(d) and 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. Each Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Party 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 Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender Party 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. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warrantyDocument), express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.and

Appears in 1 contract

Samples: Credit Agreement (Cdi Corp)

The Administrative Agent. Each of the ~~Lender Parties~~ Lenders and each of the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent ~~hereunder and under the other Loan Documents~~ 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 this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~bank serving~~ provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Lenders, and no Obligor shall have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent ~~hereunder~~ is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. BNP Paribas shall have the same rights and powers in its capacity as a Lender hereunder as any other Lender and may exercise the same as though it BNP Paribas were not the Administrative Agent, and ~~such bank~~ BNP Paribas and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrowers~~ any Obligor or any ~~of the Subsidiaries~~ Subsidiary or other Affiliate of any thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by this Agreement and the other Loan Documents that the Administrative Agent is required to exercise as directed 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);~~ Lenders, and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any ~~Borrower~~ Obligor or any of ~~the~~ their respective Subsidiaries that is communicated to or obtained by ~~the bank serving as Administrative Agent~~ BNP Paribas or any of 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, if provided herein, with the consent or ~~such other number or percentage~~ at the request of the Required Revolving Credit Lenders ~~as shall be necessary under the circumstances as provided in Section 9.02)~~ or Required Incremental Lenders of any Class, or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~the~~ a Borrower ~~Representative~~ or ~~a Lender Party~~Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any~~ this Agreement or the other Loan ~~Document;~~ Documents, (ii) the contents of any certificate, report or other document delivered hereunder or under any of the other Loan Documents or in connection ~~with any Loan Document;~~ herewith of therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or in any other Loan Document; , (iv) the ~~adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality,~~ validity, enforceability, ~~effectiveness, adequacy~~ effectiveness or genuineness of ~~any~~ this Agreement, the other Loan ~~Document~~ Documents or any other agreement, instrument or document~~; (vi) the creation~~, ~~perfection or priority of Liens on the Collateral or the existence of the Collateral;~~ or (~~vii~~v) the satisfaction of any condition set forth in Article IV VI or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall not be required to initiate or conduct any litigation or collection proceedings hereunder or under any other Loan Document. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any ~~representation,~~ notice, request, certificate, consent, statement, instrument, document or other writing ~~or communication~~ believed by it to be genuine and ~~correct, and~~ to have been ~~authorized,~~ signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made ~~or authorized~~ 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, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or Issuing Lender prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrowers~~a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its ~~duties~~ duties, and exercise its rights and ~~powers~~ powers, by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through ~~their respective~~ its 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 and any such sub-agent, and shall apply to ~~their respective~~ its activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. ~~Subject~~ The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the ~~appointment~~ extent that a court of competent jurisdiction determines in a final and ~~acceptance of a successor~~ nonappealable judgment that the Administrative Agent ~~as provided~~ acted with gross negligence or willful misconduct in ~~this paragraph,~~ the selection of such sub-agents. The Administrative Agent may resign at any time ~~by notifying~~ upon 15 days notice to the Lenders, the Issuing ~~Bank~~ Lenders and the ~~Borrower Representative~~Company. Upon any such resignation, the Required Lenders shall have the ~~right to appoint a successor~~ right, with the consent of the Company (~~if such~~ not to be unreasonably withheld), to appoint a successor ~~is not a Lender)~~Administrative Agent. If no successor shall have been so appointed and shall have accepted such appointment within 15 days after such retiring Administrative Agent gives notice of its resignation (the “Resignation Effective Date”), then such retiring Administrative Agent may, on behalf of the Lenders and the Issuing Lenders, appoint a successor Administrative Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank, provided that if no such bank is willing to accept such appointment, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Company and such Person remove such Person as Administrative Agent and, in consultation with the Company, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days ~~after~~ (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date, as applicable, (a) the retiring or removed Administrative Agent ~~gives notice of~~ shall be discharged from its ~~resignation, then~~ duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent ~~may~~shall instead be made by or to each Lender and Issuing Lender directly, ~~on behalf of~~ until such time, if any, as the ~~Lender Parties,~~ Required Lenders appoint a successor Administrative ~~Agent, which shall be a commercial bank or an Affiliate of any such commercial bank, which shall be reasonably satisfactory to the Company~~Agent as provided for above. Upon the acceptance of its appointment as Administrative ~~Agent hereunder by a successor~~Agent, such successor shall succeed to and become vested with all the rights, powers, ~~privileges, obligations~~ privileges and duties of the retiring or removed Administrative Agent (~~or retired) Administrative Agent,~~ and the retiring or removed Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents) other than any rights to indemnity payments owed to the retiring or removed Administrative Agent. The fees payable by the ~~Borrowers~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Company and such successor. After ~~the~~ an Administrative Agent’s resignation hereunder, the provisions of this ~~Article, Sections 2.17(d)~~ Article and ~~9.03~~ Section 11.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. Each Lender ~~Party~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Issuing Lender or any other Lender ~~Party~~ 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 ~~Party~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Issuing Lender or any other Lender ~~Party~~ 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~~ Agreement and the other Loan ~~Document or~~ Documents, any related agreement or any document furnished hereunder or thereunder. ~~Each Lender Party hereby agrees that (a) it has requested a copy~~ The institutions listed on the cover page of ~~each Report prepared by~~ this Agreement as Sole Bookrunner, Joint Lead Arrangers, Syndication Agents and Documentation Agents shall have no rights, obligations or ~~on behalf of~~ liabilities under the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained Loan Documents in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with any Borrower or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lenderthose capacities.

Appears in 1 contract

Samples: Credit Agreement (Foster Wheeler Ag)

Appears in 1 contract

Samples: Credit Agreement (Quad/Graphics, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Mgi Pharma Inc)

Common use of The Administrative Agent Clause in Contracts