The Administrative Agent. Each of the Lenders, the Swingline Lender and each Letter of Credit Issuer hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 Borrower or any 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. 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 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 12.1), and (c) except as expressly set forth 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 the Borrower or any of 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 12.1) or in the absence of its own gross negligence or willful 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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 Swingline Lender, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, the Swingline Lender and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 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 acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 5 contracts

Samples: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)

The Administrative Agent. Each of the Lenders, the Swingline Lender and each Letter of Credit Issuer hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 Borrower or any 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. 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 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 12.1), and (c) except as expressly set forth 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 the Borrower or any of 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 12.1) or in the absence of its own gross negligence or willful 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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 Swingline Lender, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, the Swingline Lender and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 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 acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the ~~Joint Bookrunners~~Arrangers, the ~~Joint Lead Arrangers~~ Co-Syndication Agents and the ~~Syndication~~ Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 5 contracts

Samples: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement to serve as ~~its~~ administrative agent, collateral agent and trustee under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and none of Holdings, the Parent Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person 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~~ 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 Holdings, the Parent Borrower or any other 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 ~~herein~~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 ~~hereby~~ 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 under the circumstances as provided in ~~Section 12.1~~the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) except as expressly set forth ~~herein~~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 Holdings, the ~~Borrower~~ Parent Borrower, any other Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the 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 ~~12.1~~2.05(j) or Section 9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 Holdings, the ~~Borrower~~ Parent Borrower, a Lender or ~~a Lender~~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 ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may ~~rely~~ rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person~~, and shall not incur any liability for relying thereon~~). The Administrative Agent may consult with legal counsel (who may be counsel for the 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 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 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 30 days’ notice to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Parent Borrower. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Parent Borrower and the Required Lenders. Upon receipt of any such ~~resignation~~notice of resignation or upon such removal, the Required Lenders shall have the right, with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Parent Borrower’s consent, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent~~ Agent, which shall be ~~a bank~~ an Approved Bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such ~~bank~~Approved Bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by Holdings and the Parent Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by Holdings, the Parent Borrower and such successor. After the Administrative Agent’s resignation ~~hereunder~~hereunder and under the other Loan Documents, the provisions of this Article and Section ~~12.5~~ 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 and each Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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~~ Agent, any Joint Bookrunner or any other Lender or any 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 and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner or any other Lender or any 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 Refinancing Amendment pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Lender shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured 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 Lenders in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, 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 unless Required Lenders shall otherwise agree in writing) 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 Secured Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Lenders at such sale or other disposition. Each Lender, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations, to have agreed to the foregoing provisions. Notwithstanding anything herein to the ~~contrary the~~ contrary, neither any Joint ~~Bookrunners, the Joint Lead Arrangers and the Syndication Agents~~ Bookrunner nor any Person named on the cover page of this Agreement as a Joint Lead Arranger or a Syndication Agent shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder, including under Section 9.03, fully as if named as an indemnitee or indemnified person therein and irrespective of whether the indemnified losses, claims, damages, liabilities and/or related expenses arise out of, in connection with or as a result of matters arising prior to, on or after the effective date of any Loan Document. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. Without limiting or expanding the provisions of Section 2.17, each Lender shall, and does hereby, indemnify the Administrative Agent against, and shall make payable in respect thereof within 30 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the U.S. Internal Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not property executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this paragraph. The agreements in this paragraph shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender and the repayment, satisfaction or discharge of all other obligations under any Loan Document. Each party to this Agreement hereby appoints the Administrative Agent to act as its agent under and in connection with the relevant Security Documents, acknowledges that the Administrative Agent is the beneficiary of the parallel debt referred to in the relevant Security Documents and the Administrative Agent will accept the parallel debt arrangements reflected in the relevant Security Documents on its behalf and will enter into the relevant Security Documents as pledgee in its own name.

Appears in 4 contracts

Samples: Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement to serve as ~~its~~ administrative agent, collateral agent and trustee under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and none of Holdings, the Parent Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person 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~~ 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 Holdings, the Parent Borrower or any other 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 ~~herein~~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 ~~hereby~~ 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 under the circumstances as provided in ~~Section 12.1~~the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) except as expressly set forth ~~herein~~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 Holdings, the ~~Borrower~~ Parent Borrower, any other Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the 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 ~~12.1~~2.05(j) or Section 9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 Holdings, the ~~Borrower~~ Parent Borrower, a Lender or ~~a Lender~~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 ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may ~~rely~~ rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person~~, and shall not incur any liability for relying thereon~~). The Administrative Agent may consult with legal counsel (who may be counsel for the 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 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 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 30 days’ notice to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Parent Borrower. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Parent Borrower and the Required Lenders. Upon receipt of any such ~~resignation~~notice of resignation or upon such removal, the Required Lenders shall have the right, with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Parent Borrower’s consent, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent~~ Agent, which shall be ~~a bank~~ an Approved Bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such ~~bank~~Approved Bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by Holdings and the Parent Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by Holdings, the Parent Borrower and such successor. After the Administrative Agent’s resignation ~~hereunder~~hereunder and under the other Loan Documents, the provisions of this Article and Section ~~12.5~~ 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 and each Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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~~ Agent, any Joint Bookrunner or any other Lender or any 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 and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner or any other Lender or any 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, Incremental Term Facility Amendment or Refinancing Amendment pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Lender shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured 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 Lenders in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, 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 unless Required Lenders shall otherwise agree in writing) 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 Secured Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Lenders at such sale or other disposition. Each Lender, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations, to have agreed to the foregoing provisions. Notwithstanding anything herein to the ~~contrary the~~ contrary, neither any Joint ~~Bookrunners, the Joint Lead Arrangers and the Syndication Agents~~ Bookrunner nor any Person named on the cover page of this Agreement as a Joint Lead Arranger or a Syndication Agent shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder, including under Section 9.03, fully as if named as an indemnitee or indemnified person therein and irrespective of whether the indemnified losses, claims, damages, liabilities and/or related expenses arise out of, in connection with or as a result of matters arising prior to, on or after the effective date of any Loan Document. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. Without limiting or expanding the provisions of Section 2.17, each Lender shall, and does hereby, indemnify the Administrative Agent against, and shall make payable in respect thereof within 30 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the U.S. Internal Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not property executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this paragraph. The agreements in this paragraph shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender and the repayment, satisfaction or discharge of all other obligations under any Loan Document. Each party to this Agreement hereby appoints the Administrative Agent to act as its agent under and in connection with the relevant Security Documents, acknowledges that the Administrative Agent is the beneficiary of the parallel debt referred to in the relevant Security Documents and the Administrative Agent will accept the parallel debt arrangements reflected in the relevant Security Documents on its behalf and will enter into the relevant Security Documents as pledgee in its own name.

Appears in 4 contracts

Samples: Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.)

Appears in 4 contracts

Samples: Credit Agreement (Ethan Allen Interiors Inc), Credit Agreement (Ethan Allen Interiors Inc), Credit Agreement (Ethan Allen Interiors Inc)

The Administrative Agent. (a) Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter~~ of ~~Credit Issuer~~ the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of this Agreement and the other 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 hereunder as any other Lender and may exercise the same as though it the Administrative Agent were not the Administrative Agent, and ~~such bank~~ the Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrower~~ any Credit Party or any Subsidiary or other Affiliate of any 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 ~~herein~~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 ~~hereby~~ 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 12.1)~~Lenders, and (c) except as expressly set forth ~~herein~~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 ~~the Borrower~~ any Credit Party or any of ~~its~~ their respective 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, if provided herein, with the consent or ~~such~~ at the request of any other specified number ~~or percentage~~ of ~~the Lenders as shall be necessary under the circumstances as provided in Section 12.1)~~ Lenders, or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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~~ Company or a 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~~Agreement or the other Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or under any of the other Loan Documents or in connection ~~herewith~~herewith of therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~herein or in any other Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, the other Loan Documents or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall not, except to the extent expressly instructed by the Required Lenders with respect to collateral security under the Security Documents, be required to initiate or conduct any litigation or collection proceedings hereunder or under any other Loan Document. (e) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ 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. . (f) 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 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. . (g) 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Lenders and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Company, to appoint a ~~successor~~successor Administrative Agent. If no successor shall have been so appointed ~~by the Required Lenders~~ and shall have accepted such appointment within 30 days after ~~the~~ such retiring Administrative Agent gives notice of its resignation, then ~~the~~ such retiring Administrative Agent may, on behalf of the Lenders and the Issuing Lenders~~, the Swingline Lender and each Letter of Credit Issuer~~, appoint a successor Administrative ~~Agent~~ Agent, which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative ~~Agent hereunder~~ Agent, by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After ~~the~~ an Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 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. . (h) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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~~ Agent, any Issuing Lender or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Issuing Lender or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement~~Agreement and the other Loan Documents, any related agreement or any document furnished hereunder or thereunder~~. Notwithstanding anything herein to~~ . (i) The Administrative Agent shall not be responsible for monitoring the ~~contrary the Joint Bookrunners~~existence or performance of any Secured Cash Management Agreement or Secured Swap Agreement. (j) No Person named as a Co-Syndication Agent, ~~the~~ Co-Documentation Agent, Joint Lead ~~Arrangers and the Syndication Agents named on the cover page of~~ Arranger or Joint Bookrunner in this Agreement shall ~~not~~ have any ~~duties~~ rights (other than pursuant to Section 10.03(b)) or ~~liabilities~~ obligations under this Agreement or any other Loan Document in its capacity as such. (k) To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equal to any applicable withholding tax. If the IRS or any Governmental Authority asserts a claim that the Administrative Agent did not properly withhold tax from any amount paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Borrowers and without limiting or expanding the obligation of the Borrowers to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties, additions to tax or interest thereto, together with all expenses incurred, including legal expenses and any out-of-pocket expenses, whether or not such tax was correctly or legally imposed or asserted by the relevant Government Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this Article IX. The agreements in this Article IX shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Loans and the repayment, satisfaction or discharge of all obligations under this Agreement. Unless required by applicable Laws, ~~except in its capacity~~at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender any refund of Taxes withheld or deducted from funds paid for the account of such Lender. For purposes of this paragraph (k), ~~if any, as a~~ the term “Lender” includes any Issuing Lender.

Appears in 4 contracts

Samples: Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De)

Appears in 3 contracts

Samples: Credit Agreement (On Semiconductor Corp), Credit Agreement (On Semiconductor Corp), Credit Agreement (On Semiconductor Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as ~~its~~ administrative agent and collateral agent under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 of America, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. The ~~bank~~ Person 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~~ 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 Borrower or any 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 ~~herein~~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 ~~hereby~~ 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 12.1~~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 ~~herein~~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~~ Borrower, any Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the 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 12.1~~the Loan Documents) or in the absence of its own gross negligence or ~~willful misconduct~~ 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~~ Borrower, a Lender or ~~a Lender~~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 ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ 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 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 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 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~~ from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~resignation~~intent to resign, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent~~ Agent, which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by the Borrower and such successor. ~~After~~ Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation ~~hereunder~~from its capacity as such, the provisions of this Article and Section ~~12.5~~ 9.03, as well as any exculpatory, reimbursement and 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~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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~~ Agent, the Arrangers or any other Lender 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 and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arrangers or any other Lender 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 Incremental Facility Agreement pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Secured Party shall have any right individually to realize upon any of the Collateral or 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 Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) 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 Loan Document Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement, agreement with respect to cash management obligations or other agreement (other than the Loan Documents) the obligations under which constitute 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 any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Hedging Agreement or other 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. Notwithstanding anything herein to the ~~contrary~~ contrary, neither the ~~Joint Bookrunners, the Joint Lead~~ Arrangers ~~and the Syndication Agents~~ nor any Person named on the cover page of this Agreement as a Joint Syndication Agent, Joint Lead Arranger or Joint Bookrunner shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and none of the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions.

Appears in 3 contracts

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

The Administrative Agent. (a) Each of the Lenders, the ~~Swingline Lender~~ Issuing Banks and ~~each Letter of Credit Issuer~~ the other Secured Parties hereby irrevocably appoints ~~the Administrative Agent~~ Bank of America as its agent and authorizes ~~the Administrative Agent~~ Bank of America to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each of the Lenders, the Issuing Banks and the other Secured Parties hereby irrevocably appoints Bank of America as its collateral agent and authorizes Bank of America to take such actions on its behalf and to exercise such powers as are delegated to the collateral agent by the terms hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ provisions of this Article are solely for the benefit of the Administrative Agent, the collateral agent, the Lenders, the Issuing Bank and the Secured Parties, and no Loan Party 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 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. The Administrative Agent alone shall be authorized to determine in its Permitted Discretion whether any Accounts or Inventory constitute Eligible Accounts or Eligible Inventory or whether to impose or release any Reserve (in each case, pursuant to the terms of this Agreement), or whether any conditions to funding any Loan or to issuance of a Letter of Credit have been satisfied, which determinations and judgments, if exercised in good faith, shall exonerate the Administrative Agent from liability to any Lender or other Person for any error in judgment or mistake. (b) The 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~~ the term “Lender” or “Lenders” shall, 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 to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the ~~Borrower~~ Company or any 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. (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. 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 as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary under~~ expressly provided for herein or by the ~~circumstances as provided in Section 12.1~~other Loan Documents), and (c) except as expressly set forth 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 the Borrower or any of its Subsidiaries provided 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 12.1) or in the absence of its own gross negligence or willful 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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for take any action ~~taken~~ that, in its opinion or ~~not taken by it in accordance with~~ the ~~advice~~ opinion of ~~any such~~ its 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 expose the Administrative Agent ~~and~~ to liability or that is contrary to any ~~such sub-agent~~Loan Document or applicable law , ~~and shall apply to their respective activities~~ including for the avoidance of doubt any action that may be in ~~connection with the syndication~~ violation of the ~~credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance~~ automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a ~~successor Administrative Agent as provided~~ Defaulting Lender in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Swingline Lender, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, the Swingline Lender and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate violation of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 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 acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.Debtor Relief Law;; and

Appears in 3 contracts

Samples: Credit Agreement (Dole PLC), Credit Agreement (Dole PLC), Credit Agreement (Dole Food Co Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ 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 and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Collateral Agent as the collateral agent hereunder and under the other Loan Documents and authorizes the Collateral Agent to have all the rights and benefits hereunder and thereunder (including Section 9 of the Guarantee and Security Agreement), and to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms 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 to, make investments in and generally engage in any kind of business trust or other business with ~~the~~ any Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent ~~hereunder~~hereunder and such Person and its Affiliates may accept fees and other consideration from any Borrower or any Subsidiary or other Affiliate thereof for services in connection with this Agreement or otherwise without having to account for the same to the other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~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~~continuing with respect to any Borrower, (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 12.1)~~Lenders, and (c) except as expressly set forth ~~herein~~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 ~~the~~ any Borrower or any of 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~~ expressly provided for herein or in the ~~circumstances as provided in Section 12.1~~other Loan Documents) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default with respect to a Borrower unless and until written notice thereof is given to the Administrative Agent by ~~the~~ such Borrower or a 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~~Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~herewith~~herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing (including any e-mail, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~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 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the ~~Borrower~~Borrowers. Upon any such resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower (~~Borrowers not to be unreasonably ~~withheld; provided that no such consent of the Borrower shall be required~~ withheld (or, if an Event of Default has occurred and is ~~continuing~~continuing with respect to a Borrower, in consultation with such Borrower), to appoint a successor, which is 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’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~~Lenders or the Issuing Banks under any of the Loan Documents, the ~~Swingline Lender and each Letter of Credit Issuer, appoint~~ retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent ~~which~~ 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 directly) until such time as the Required Lenders appoint a ~~bank with an office~~ successor agent as provided for above in ~~the United States, or an Affiliate of any such bank~~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 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~~ each Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the~~ such Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own analysis and 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. ~~Notwithstanding anything herein~~ Except as otherwise provided in Section 9.02(b) with respect to ~~the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under~~ 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, the Administrative Agent shall not (except as provided herein or in ~~its~~ 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, or 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 of any Borrower, except that no such consent shall be required, and the Administrative Agent is hereby authorized, to (1) release (which such release shall be automatic and require no further action from any party) 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, (2) release from any Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) that is designated as a “Designated Subsidiary” by the applicable Borrower or becomes an Excluded Asset or an Immaterial Subsidiary with respect to a Borrower in accordance with this Agreement or which is no longer required to be a “Subsidiary Guarantor”, so long as in the case of this clause (2): (A) immediately after giving effect to any such release (and any concurrent acquisitions of Portfolio Investments by the applicable Borrower or payment of outstanding Indebtedness of such Borrower), the Covered Debt Amount of such Borrower does not exceed the Borrowing Base of such Borrower and such Borrower delivers a certificate of a Financial Officer to such effect to the Administrative Agent, (B) either (I) the amount of any excess availability under the Borrowing Base of such Borrower immediately prior to such release is not diminished as a result of such release or (II) the Borrowing Base of such Borrower immediately after giving effect to such release is at least 110% of the Covered Debt Amount of such Borrower and (C) no Default or Event of Default has occurred and is continuing with respect to such Borrower, (3) spread Liens to any Designated Indebtedness of a Borrower or Hedging Agreement Obligations (as such terms are defined in the Guarantee and Security Agreement to which such Borrower is a party) in accordance with the Guarantee and Security Agreement to which such Borrower is a party and (4) release from any Guarantee and Security Agreement any Obligor (and any property of such Obligor) that is concurrently being joined as an Obligor under any other Guarantee and Security Agreement in connection with a transaction permitted hereunder. None of the Syndication Agent, any Documentation Agent or any Joint Lead Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, ~~if any, as a Lender~~but all such persons shall have the benefit of the indemnities provided for hereunder.

Appears in 3 contracts

Samples: Senior Secured Revolving Credit Agreement (FS Investment Corp III), Senior Secured Revolving Credit Agreement (FS Investment Corp II), Senior Secured Revolving Credit Agreement (Corporate Capital Trust, Inc.)

The Administrative Agent. (a) Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. (b) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and the Issuing Banks hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and such Issuing Bank for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant hereto for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.03, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto. (c) 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 Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder~~. The~~ . (d) To the extent required by any applicable laws, the Administrative Agent ~~shall not have~~ may withhold from any ~~duties or obligations except those expressly set forth herein~~payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the ~~generality~~ provisions of Section 2.16, each Lender shall indemnify and hold harmless the Administrative Agent against, within 10 days after written demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent as a result of the ~~foregoing~~failure of the Administrative Agent to properly withhold any Tax from amounts paid to or for the account of such Lender for any reason (including, ~~(a)~~ without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of, withholding Tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by 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)~~ conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent ~~shall not have~~ to set off and apply any ~~duty~~ and all amounts at any time owing to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated 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~~ Lender under the circumstances as provided in Section 12.1), and (c) except as expressly set forth 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 the Borrower or any of 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 12.1) or in the absence of its own gross negligence or willful 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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other ~~agreement, instrument or document, or~~ Loan Document against any amount due the Administrative Agent under this clause (vd). The agreements in this clause (d) shall survive the ~~satisfaction~~ resignation and/or replacement of ~~any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to~~ the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations. The ~~Administrative Agent shall be entitled to rely upon~~term “Lender” shall, ~~and shall not incur any liability~~ for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel purposes of this clause (~~who may be counsel for the Borrower~~d), ~~independent accountants and other experts selected by it, and shall not be liable for~~ include 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 Issuing Bank 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. 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 Swingline Lender, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, the Swingline Lender and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 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 acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 3 contracts

Samples: Credit Agreement (Caseys General Stores Inc), Credit Agreement (Caseys General Stores Inc), Credit Agreement (Caseys General Stores Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline~~ Issuing Lender ~~and each Letter of Credit 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 to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (in its capacities as a Lender) hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of (and to hold any security interest created by the Security Documents for and on behalf of or on trust for) such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Obligors to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” (and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to this Article for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article including Section 10.03, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting any other provision of this Article, each Lender hereby authorizes the Administrative Agent to enter into (and/or agree to any amendments to) from time to time (i) any Security Documents and (ii) intercreditor (including subordination) arrangements on behalf of the Lenders in respect of any Other Debt or Permitted Additional Indebtedness to the extent permitted or contemplated hereunder, in each case as the Administrative Agent shall determine to be appropriate and consistent with the provisions hereof. The 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 Borrower or any 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~~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 12.1)~~Lenders, and (c) except as expressly set forth ~~herein~~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 the Borrower or any of 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 12.1)~~ or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~herewith~~herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 V or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrower~~an Obligor), 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Lender and the Borrower. Additionally, if the Lender then acting as the Administrative Agent is a Defaulting Lender by virtue of clause (e) of the definition thereof, then the Administrative Agent may be removed by the Required Lenders and the Borrower (or only the Required Lenders, if a Default shall exist) upon 30 days’ written notice thereof to the Administrative Agent and the Lenders. Upon any such ~~resignation~~resignation or removal, the Required Lenders and the Borrower shall have the right, ~~with the consent of the Borrower (not to be unreasonably withheld; provided that~~ so long as no ~~such consent of the Borrower~~ Default shall ~~be required if an Event of Default has occurred and is continuing)~~exist, to appoint a ~~successor~~successor from among the Lenders. If In the case of resignation by the Administrative Agent, if no successor shall have been so appointed by the Required Lenders and the Borrower and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Lender, appoint a successor Administrative Agent which shall be a bank with a minimum capital and surplus of $500,000,000 and with an office in New York, New York, or an Affiliate of any such bank. In the ~~United States~~case of removal of the Administrative Agent as provided above, if no successor shall have been so appointed by the Required Lenders and the Borrower (or by the Required Lenders, if a Default shall exist) and shall have accepted such appointment within 30 days after the Administrative Agent receives notice of removal, then the Borrower, so long as no Default shall exist, may, on behalf of the Lenders and the Issuing Lender, appoint a successor Administrative Agent which shall be a bank with a minimum capital and surplus of $500,000,000 and with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent,~~ Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Except as otherwise provided in Section 10.02(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, the Administrative Agent shall not (except as provided herein or in the Security Documents) release all or substantially all of the collateral or terminate any Lien with respect thereto under the Security Agreement, 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. Notwithstanding anything ~~herein~~ to the contrary ~~the Joint Bookrunners~~contained herein, the ~~Joint Lead Arrangers~~ Security Documents executed by the Obligors in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be amended and waived with the consent of the Administrative Agent at the request of the Borrower without the need to obtain the consent of any Lender if such amendment or waiver is delivered in order (i) to comply with applicable local law, rule or regulation or advice of local counsel, (ii) to cure ambiguities, defects or manifest errors, (iii) to cause any such Security Documents to be consistent with this Agreement and the ~~Syndication Agents named on~~ other Loan Documents and/or (iv) to give effect to the ~~cover page of this Agreement shall not have~~ changes to any ~~duties or liabilities under this~~ Security Document required by any Intercreditor Agreement~~, except in its capacity, if any, as a Lender~~.

Appears in 3 contracts

Samples: Incremental Loan Amendment (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Parent Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 Parent Borrower or any of ~~its~~ 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 Parent Borrower or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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 of 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~~ each 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Parent Borrower. Upon any such resignation, the Required Lenders shall have the ~~right,~~ right to appoint a successor with the consent of the ~~Borrower (~~Parent Borrower, which consent shall not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent ~~which~~ that shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Parent Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Parent Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 3 contracts

Samples: Credit Agreement (Knowles Electronics LLC), Credit Agreement (Knowles Electronics LLC), Credit Agreement (Knowles Electronics LLC)

The Administrative Agent. (a) Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter~~ of ~~Credit Issuer~~ the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of this Agreement and the other 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 hereunder as any other Lender and may exercise the same as though it the Administrative Agent were not the Administrative Agent, and ~~such bank~~ the Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrower~~ any Credit Party or any Subsidiary or other Affiliate of any 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 ~~herein~~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 ~~hereby~~ 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 12.1)~~Lenders, and (c) except as expressly set forth ~~herein~~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 ~~the Borrower~~ any Credit Party or any of ~~its~~ their respective 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, if provided herein, with the consent or ~~such~~ at the request of any other specified number ~~or percentage~~ of ~~the Lenders as shall be necessary under the circumstances as provided in Section 12.1)~~ Lenders, or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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~~ Company or a 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~~Agreement or the other Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or under any of the other Loan Documents or in connection ~~herewith~~herewith of therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~herein or in any other Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, the other Loan Documents or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall not, except to the extent expressly instructed by the Required Lenders with respect to collateral security under the Security Documents, be required to initiate or conduct any litigation or collection proceedings hereunder or under any other Loan Document. (e) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ 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. . (f) 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 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. . (g) 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Lenders and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Company, to appoint a ~~successor~~successor Administrative Agent. If no successor shall have been so appointed ~~by the Required Lenders~~ and shall have accepted such appointment within 30 days after ~~the~~ such retiring Administrative Agent gives notice of its resignation, then ~~the~~ such retiring Administrative Agent may, on behalf of the Lenders and the Issuing Lenders~~, the Swingline Lender and each Letter of Credit Issuer~~, appoint a successor Administrative ~~Agent~~ Agent, which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative ~~Agent hereunder~~ Agent, by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After ~~the~~ an Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 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. . (h) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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~~ Agent, any Issuing Lender or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Issuing Lender or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement~~Agreement and the other Loan Documents, any related agreement or any document furnished hereunder or thereunder~~. Notwithstanding anything herein to~~ . (i) The Administrative Agent shall not be responsible for monitoring the ~~contrary the Joint Bookrunners~~existence or performance of any Secured Cash Management Agreement or Secured Swap Agreement. (j) No Person named as a Syndication Agent, ~~the~~ Co-Documentation Agent, Joint Lead ~~Arrangers and the Syndication Agents named on the cover page of~~ Arranger or Joint Bookrunner in this Agreement shall ~~not~~ have any ~~duties~~ rights (other than pursuant to Section 10.03(b)) or ~~liabilities~~ obligations under this Agreement or any other Loan Document in its capacity as such. (k) To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equal to any applicable withholding tax. If the IRS or any Governmental Authority asserts a claim that the Administrative Agent did not properly withhold tax from any amount paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Borrowers and without limiting or expanding the obligation of the Borrowers to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties, additions to tax or interest thereto, together with all expenses incurred, including legal expenses and any out-of-pocket expenses, whether or not such tax was correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this Article IX. The agreements in this Article IX shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Loans and the repayment, satisfaction or discharge of all obligations under this Agreement. Unless required by applicable laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender any refund of Taxes withheld or deducted from funds paid for the account of such Lender. For purposes of this paragraph (k), the term “Lender” includes any Issuing Lender. (l) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender. (m) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (l) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, ~~except~~ any Loan Document or any documents related hereto or thereto). (n) The Administrative Agent, and each Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in ~~its~~ a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if ~~any~~it extended the Loans, ~~as a Lender~~the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

Appears in 3 contracts

Samples: Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 the Issuing Bank 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 ~~Borrower~~ Company or any ~~Subsidiary~~ of its Subsidiaries thereof 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 for the Administrative Agent 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 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 12.1)~~Lenders, and (c) except as expressly set forth herein, 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 the ~~Borrower~~ Company or any of 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 ~~12.1~~9.02) to the extent required by Section 9.02 or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other ~~than~~ than, in the case of the Administrative Agent, 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying ~~thereon~~Table of Contents thereon provided such reliance is made in good faith. ~~The~~ Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~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~~ subagents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-agent~~ subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding ~~paragraphs~~ subsections shall apply to any such ~~sub-agent~~ subagent and to the Related Parties of the Administrative Agent and any such ~~sub-agent~~subagent, 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 an appropriate successor Administrative Agent as provided in this ~~paragraph~~subsection, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Company (not to be unreasonably ~~withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~withheld or delayed), to appoint a successor, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint with the ~~Swingline Lender and each Letter~~ consent of ~~Credit Issuer~~the Company (not to be unreasonably withheld or delayed), ~~appoint~~ a successor Administrative ~~Agent~~ Agent, which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as ~~those~~ those, if any, payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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~~ Agent, the Issuing Bank or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Issuing Bank or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page~~ Table of ~~this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.~~Contents ARTICLE IX

Appears in 3 contracts

Samples: Credit Agreement (Sherwin Williams Co), Credit Agreement (Sherwin Williams Co), Credit Agreement (Sherwin Williams Co)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline~~ Issuing Lender ~~and each Letter of Credit 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 to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (in its capacities as a Lender) hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of (and to hold any security interest created by the Security Documents for and on behalf of or on trust for) such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Obligors to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” (and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to this Article for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article including Section 10.03, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting any other provision of this Article, each Lender hereby authorizes the Administrative Agent to enter into (and/or agree to any amendments to) from time to time (i) any Security Documents and (ii) intercreditor (including subordination) arrangements on behalf of the Lenders in respect of any Other Debt to the extent permitted or contemplated hereunder, in each case as the Administrative Agent shall determine to be appropriate and consistent with the provisions hereof. The 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 Borrower or any 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~~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 12.1)~~Lenders, and (c) except as expressly set forth ~~herein~~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 the Borrower or any of 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 12.1)~~ or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~herewith~~herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 V or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrower~~an Obligor), 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Lender and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the~~ Borrower ~~(not to be unreasonably withheld; provided that~~ so long as no ~~such consent of the Borrower~~ Default shall ~~be required if an Event of Default has occurred and is continuing)~~exist, to appoint a ~~successor~~successor from among the Lenders. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Lender, appoint a successor Administrative Agent which shall be a bank with a minimum capital and surplus of $500,000,000 and with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent,~~ Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Except as otherwise provided in Section 10.02(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, the Administrative Agent shall not (except as provided herein or in the Security Documents) release all or substantially all of the collateral or terminate any Lien with respect thereto under the Security Agreement, 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. Notwithstanding anything ~~herein~~ to the contrary ~~the Joint Bookrunners~~contained herein, the ~~Joint Lead Arrangers~~ Security Documents executed by the Obligors in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be amended and waived with the consent of the Administrative Agent at the request of the Borrower without the need to obtain the consent of any Lender if such amendment or waiver is delivered in order (i) to comply with applicable local law, rule or regulation or advice of local counsel, (ii) to cure ambiguities, defects or manifest errors, (iii) to cause any such Security Documents to be consistent with this Agreement and the ~~Syndication Agents named on~~ other Loan Documents and/or (iv) to give effect to the ~~cover page of this Agreement shall not have~~ changes to any ~~duties or liabilities under this~~ Security Document required by any Intercreditor Agreement~~, except in its capacity, if any, as a Lender~~.

Appears in 3 contracts

Samples: Credit Agreement (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any ~~Subsidiary~~ of its 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 ~~herein~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. 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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate of the Administrative Agent, as a Lender, has any Revolving Exposure, outstanding Term Loan or unused Commitment and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower (and, so long as no Event of Default has occurred which is continuing, subject to the consent of ~~the Borrower (~~Borrower, not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 60 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Bank, in consultation with the ~~Swingline Lender and each Letter of Credit Issuer~~Borrower, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Houston, Texas, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 3 contracts

Samples: Credit Agreement (DXP Enterprises Inc), Credit Agreement (DXP Enterprises Inc), Credit Agreement (DXP Enterprises Inc)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 ~~Borrower~~ Company or any ~~Subsidiary~~ of its 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 ~~herein~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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~~ Company or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. 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, 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~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 Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate of the Administrative Agent, as a Lender, has any Revolving Exposure or unused Commitment and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the ~~Borrower~~Borrower Representative. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower ~~(not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Representative, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Chicago, Illinois, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 3 contracts

Samples: Credit Agreement (Allscripts Healthcare Solutions Inc), Credit Agreement (Allscripts-Misys Healthcare Solutions, Inc.), Credit Agreement (Allscripts Healthcare Solutions Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent (it being understood that reference in this Article VIII to the Administrative Agent shall be deemed to include the Collateral Agent) as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Parent Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~10.02), and (c) except as expressly set forth ~~herein~~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 Holdings, the Parent Borrower or any of 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 ~~12.1~~10.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 Holdings, the Parent Borrower, a Subsidiary Term Borrower, a Foreign Subsidiary Borrower or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Parent Borrower, a Subsidiary Term Borrower or any Foreign Subsidiary 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~~ each 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the ~~Borrower~~Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers). Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of~~ Parent Borrower and, if applicable, the relevant Subsidiary Term Borrower ~~(not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred~~ and ~~is continuing)~~Foreign Subsidiary Borrower, to appoint a ~~successor~~successor from among the Lenders. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ The Lenders identified in this Agreement as the ~~contrary the Joint Bookrunners, the Joint Lead Arrangers~~ Syndication Agent and the ~~Syndication~~ Documentation Agents ~~named on the cover page of this Agreement~~ shall not have any ~~duties~~ right, power, obligation, liability, responsibility or ~~liabilities~~ duty under this ~~Agreement~~Agreement other than those applicable to all Lenders. Without limiting the foregoing, ~~except~~ none of the Syndication Agent or the Documentation Agents shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the Syndication Agent and the Documentation Agents as it makes with respect to the Administrative Agent or any other Lender in ~~its capacity, if any, as a Lender~~this Article VIII.

Appears in 3 contracts

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

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Catalytica, the Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 Catalytica, the Borrower or any of ~~its~~ 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 Catalytica, the Borrower or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~ each 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if~~ approval, unless an Event of Default has occurred ~~and~~ or is continuing), of the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent ~~which~~ that shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Samples: Effectiveness Agreement (Catalytica Inc), Credit Agreement (Catalytica Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~ each 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. Subject to the appointment and acceptance of a successor the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with ~~the consent of~~ the Borrower (~~not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if~~ unless an Event of Default has occurred and is continuing), to appoint a ~~successor~~successor from among the other Lenders. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Samples: Credit Agreement (Telecorp PCS Inc /Va/), Credit Agreement (Telecorp Communications Inc)

Appears in 2 contracts

Samples: Credit Agreement (SVMK Inc.), Credit Agreement (SVMK Inc.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not~~ Borrower, to ~~be unreasonably withheld~~appoint a successor; provided that no such ~~consent of~~ consultation with the Borrower shall be required if ~~an Event of~~ a Default has occurred and is continuing~~), to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~under the Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Samples: Credit Agreement (Cumulus Media Inc), Amendment and Restatement Agreement (Cumulus Media Inc)

The Administrative Agent. (a) Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (ai) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (bii) 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 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 ~~12.1~~9.02), and (ciii) except as expressly set forth 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 the Borrower or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (iv) any statement, warranty or representation made in or in connection with this Agreement, (iiw) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (~~iii~~x) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (ivy) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (vz) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. . (g) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Samples: Credit Agreement (Citrix Systems Inc), Credit Agreement (Citrix Systems Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as ~~its~~ administrative agent and collateral agent under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 of America, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. The ~~bank~~ Lenders hereby authorize the Administrative Agent to enter into any Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement in the event that any such Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable, is required to be executed and delivered pursuant to this Agreement and each Lender hereby agrees, upon execution and delivery of such Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable, to be bound by and take no actions contrary to the provisions of such Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable. The Lenders hereby authorize the Administrative Agent to negotiate the terms of, and execute and deliver, any Foreign Pledge Agreement, any Foreign Security Agreement or any other Security Document. The Person 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~~ 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 Borrower or any 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 ~~herein~~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 ~~hereby~~ 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 12.1~~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 ~~herein~~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~~ Borrower, any Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the 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 12.1~~the Loan Documents) or in the absence of its own gross negligence or ~~willful misconduct~~ 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~~ Borrower, a Lender or ~~a Lender~~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 ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ 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 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 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 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~~ from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the ~~right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing),~~ right to appoint a successor, which successor, so long as no Event of Default shall have occurred and be continuing, shall be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Lenders and approved by the Borrower (to the extent required) 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~~may (with the consent of the Borrower, such consent not to be unreasonably withheld or delayed), on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank~~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 and duties of the retiring 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 Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by the Borrower and such successor. ~~After~~ Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation ~~hereunder~~from its capacity as such, the provisions of this Article and Section ~~12.5~~ 9.03, as well as any exculpatory, reimbursement and 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~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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~~ Agent, the Arranger or any other Lender 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 and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arranger or any other Lender 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 on the Effective Date, or delivering its signature page to an Assignment and Assumption or an Incremental Facility Agreement pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date or the Closing Date. No Secured Party shall have any right individually to realize upon any of the Collateral or 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 Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) 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 Loan Document Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute 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 any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Hedging 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. Notwithstanding anything herein to the ~~contrary~~ contrary, neither the ~~Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents~~ Arranger nor any Person named on the cover page of this Agreement as a Co-Syndication Agent or a Co-Documentation Agent shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder. Except as set forth in the sixth paragraph of this Article, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and, except as set forth in the sixth paragraph of this Article, none of the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions.

Appears in 2 contracts

Samples: Credit Agreement (Costar Group Inc), Credit Agreement (Costar Group Inc)

Appears in 2 contracts

Samples: Credit Agreement (J C Penney Co Inc), Credit Agreement (J C Penney Co Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and on behalf of the Holders of Secured Obligations and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 Borrower or any 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. 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 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 ~~12.1~~9.02), and (c) except as expressly set forth 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 the Borrower or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent~~Agent or (vi) the perfection or priority of any of the Liens on any of the Collateral. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~ subagents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-agent~~ subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~sub-agent~~ subagent and to the Related Parties of the Administrative Agent and any such ~~sub-agent~~subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~the Swingline Lender,~~ each ~~Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (such consent not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative ~~Agent which~~ Agent; provided, that if an Event of Default has occurred and is continuing, no consent of the Borrower shall be ~~a bank with an office in the United States, or an Affiliate of any such bank~~required. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ None of the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacityLenders, if any, identified in this Agreement as a Co-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 hereby makes the same acknowledgments with respect to the relevant Lenders in their capacity as Co-Syndication Agents or Documentation Agent 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, including each Issuing Bank, 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 Credit Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Credit Documents, with the consent of the Administrative Agent. The Lenders, including each Issuing Bank, 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 or any Letter of Credit 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 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 Credit 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) upon termination of the Commitments and payment and satisfaction of all of the Obligations (other than contingent indemnity obligations and Obligations in respect of Hedging Agreements and Banking Services Agreements) at any time arising under or in respect of this Agreement or the Credit Documents or the Transactions; (ii) as permitted by, but only in accordance with, the terms of the applicable Credit 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 Credit Document, 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 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, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of the Borrower or any 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 constitute part of the Collateral.

Appears in 2 contracts

Samples: Credit Agreement (Inergy L P), Credit Agreement (Inergy Holdings, L.P.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline~~ Issuing Lender ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof,~~ hereof and under the other Credit 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 and generally engage in any kind of business with the ~~Borrower~~ Company or any 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. 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 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 12.1)~~Lenders, and (c) except as expressly set forth 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 the ~~Borrower~~ Company or any of ~~its~~ 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 12.1)~~ or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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~~ Company or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 V or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~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 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 Swingline Lender, each Letter of Credit Issuer~~ Lenders and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent’s resignation shall nonetheless become effective and (1) the retiring Administrative Agent ~~may, on behalf~~ shall be discharged from its duties and obligations hereunder and (2) the Required Lenders shall perform the duties of the ~~Lenders~~Administrative Agent (and all payments and communications provided to be made by, to or through the ~~Swingline~~ Administrative Agent shall instead be made by or to each Lender ~~and each Letter of Credit Issuer,~~ directly) until such time as the Required Lenders appoint a successor ~~Administrative Agent which shall be a bank with an office~~ agent as provided for above in ~~the United States, or an Affiliate of any such bank~~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 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 ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Samples: Credit Agreement (Xl Group PLC), Credit Agreement (Xl Group PLC)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any ~~Subsidiary~~ of its 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 ~~herein~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. 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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate of the Administrative Agent, as a Lender, has any Revolving Exposure or unused Commitment and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Houston, Texas, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Samples: Credit Agreement (Lubys Inc), Credit Agreement (Lubys Inc)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender and each Letter of Credit Issuer~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or ~~document,~~ document or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 Swingline Lender, each Letter of Credit Issuer~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, ~~the Swingline Lender and each Letter of Credit Issuer,~~ appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ None of the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacityLenders, if any, identified in this Agreement as an Arranger, 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 hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Arranger, 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 (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 Revolving Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.

Appears in 2 contracts

Samples: 364 Day Revolving Credit Agreement (Dentsply International Inc /De/), 364 Day Revolving Credit Agreement (Dentsply International Inc /De/)

The Administrative Agent. (a) Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (ai) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (bii) 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 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 ~~12.1~~9.02), and (ciii) except as expressly set forth 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 the Borrower or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. . (g) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. (h) The Administrative Agent shall be permitted from time to time to designate one of its Affiliates to perform the duties to be performed by the Administrative Agent hereunder with respect to Loans and Borrowings denominated in Foreign Currencies. ~~Notwithstanding anything herein~~ The provisions of this Article VIII shall apply to any such Affiliate mutatis mutandis. All provisions of this Article VIII relating to the ~~contrary~~ Administrative Agent shall be equally applicable to the ~~Joint Bookrunners~~Collateral Agent mutatis mutandis. Without limiting the foregoing, if any Collateral or any Subsidiary is sold in a transaction permitted hereunder (excluding sales to the Borrower or a Subsidiary thereof other than sales comprising part of a Permitted Securitization made to a Subsidiary which is an SPC), (a) such Collateral and the assets of such Subsidiary shall be sold free and clear of the Liens created by the Security Documents and (b) in the case of such a sale of a Subsidiary Guarantor, such Subsidiary Guarantor and its subsidiaries shall be released from the Subsidiary Guaranty and, in each case, the ~~Joint Lead Arrangers~~ Administrative Agent, the Collateral Agent and the ~~Syndication Agents named~~ UK Security Trustee shall be authorized to take any actions deemed appropriate in order to effect the foregoing. Each of the Administrative Agent, the Collateral Agent and the UK Security Trustee shall also be authorized, on behalf of the ~~cover page~~ Lenders, to (i) enter into such amendments of ~~this Agreement shall~~ the Security Documents and to enter into such agreements (including intercreditor agreements but excluding any releases of Collateral not ~~have any duties~~ otherwise authorized hereby) as, in either case, it deems necessary or ~~liabilities under this Agreement~~appropriate in connection with a Permitted Securitization and (ii) execute releases of Collateral being transferred from the Borrower or a Subsidiary to the Borrower or a Subsidiary in a transaction permitted hereby and in connection with which such Collateral is substantially contemporaneously repledged (with the same priority as the released pledge or security interest) to the Administrative Agent, ~~except in its capacity, if any~~the Collateral Agent or the UK Security Trustee, as applicable, for the benefit of the Secured Creditors. Additionally, in connection with the granting of Liens of the type described in clauses (i), (j), (m) or (s) of Section 6.02 by the Borrower or any of its Subsidiaries, each of the Administrative Agent, the Collateral Agent and the UK Security Trustee is authorized to take any actions deemed appropriate by it in connection therewith (including, without limitation, the execution of appropriate lien releases or lien subordination agreements in favor of the holder or holders of such Liens, in either case solely with respect to the item or items of equipment or other assets subject to such Liens. (i) The Administrative Agent shall, where a ~~Lender~~Lender has made a confirmation in accordance with Section 2.18(s) by providing notification to the Administrative Agent, use commercially reasonable efforts to send to the Borrowers a copy of such notification in sufficient time to enable the Borrowers to comply with their obligations under Sections 2.18(r) and (t).

Appears in 2 contracts

Samples: Credit Agreement (Manitowoc Co Inc), Credit Agreement (Manitowoc Co Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as ~~its~~ administrative agent and collateral agent under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 of America, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. The ~~bank~~ Person 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~~ 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 Holdings, the Borrower or any other 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 ~~herein~~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 ~~hereby~~ 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 12.1~~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, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Bankruptcy Event or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Bankruptcy Event, and (c) except as expressly set forth ~~herein~~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 Holdings, the ~~Borrower~~ Borrower, any Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the 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 12.1~~the Loan Documents) or in the absence of its own gross negligence or ~~willful misconduct~~ 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 Holdings, the ~~Borrower~~ Borrower, a Lender or ~~a Lender~~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 ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ 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 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 Holdings or the 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 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~~ from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~resignation~~intent to resign, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent~~ Agent, which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by Holdings and the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by Holdings, the Borrower and such successor. ~~After~~ Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation ~~hereunder~~from its capacity as such, the provisions of this Article and Section ~~12.5~~ 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-agents~~ subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative ~~Agent~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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~~ Agent, the Arrangers or any other Lender 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 and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arrangers or any other Lender 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 the First Refinancing Facility Agreement and funding or continuing its Loans on the First Refinancing Facility Agreement Effective Date, or delivering its signature page to an Assignment and Assumption or an Incremental Facility Agreement pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Original Effective Date or the First Refinancing Facility Agreement Effective Date, as the case may be. No Secured Party shall have any right individually to realize upon any of the Collateral or 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 Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) 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 Loan Document Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement, agreement with respect to cash management obligations or other agreement (other than the Loan Documents) the obligations under which constitute 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 any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Hedging Agreement or other 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. Notwithstanding anything herein to the ~~contrary~~ contrary, neither the ~~Joint Bookrunners, the Joint Lead~~ Arrangers ~~and the Syndication Agents~~ nor any Person named on the cover page of this Agreement as a Syndication Agent or a Documentation Agent shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions (other than the Borrower’s consultation right set forth in the sixth paragraph of this Article VIII).

Appears in 2 contracts

Samples: Refinancing Facility Agreement (SVMK Inc.), Refinancing Facility Agreement (SVMK Inc.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 ~~Borrower~~ Parent or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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~~ Parent or any of ~~its~~ 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 Parent, the Borrower or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrower~~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. 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, ~~or an Affiliate~~ New York, and having a combined capital and surplus of ~~any such bank~~at least $500,000,000. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, the Guarantee Agreement, the Security Documents, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ The parties hereto acknowledge that the ~~contrary the Joint Bookrunners, the Joint Lead~~ Arrangers ~~and the Syndication Agents named on the cover page of this Agreement shall~~ (in their capacity as such) do not have any duties or ~~liabilities~~ responsibilities under ~~this~~ any of the Loan Documents and will not be subject to liability thereunder to any of the Loan Parties for any reason. No Secured Party shall have any right individually to realize upon any of the Collateral, it being understood and agreed that all powers, rights and remedies under the Security Documents may be exercised solely by the Collateral Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, 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 unless the Required Lenders shall otherwise agree in writing) 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 Revolving Loan Document Obligations (as defined in the Collateral Agreement) as a credit on account of the purchase price for any Collateral payable by the Administrative Agent on behalf of the Lenders at such sale or other disposition. The Lenders hereby authorize the Administrative Agent and Collateral Agent to enter into (i) any Second Lien Intercreditor Agreement, ~~except~~ (ii) the First Lien Intercreditor Agreement and (iii) an acknowledgement and consent to the GM Access and Security Agreement, and, in each case, acknowledge that they will be bound thereby. The Collateral Agent shall be entitled to the benefits of this Article on the same basis as if named herein as the Administrative Agent, and also shall be entitled to the exculpatory provisions and rights set forth in the Collateral Agreement and other Security Documents. The rights of the Collateral Agent under the Loan Documents may not be amended or modified in a manner adverse to the Collateral Agent without its ~~capacity, if any, as a Lender~~prior written consent.

Appears in 2 contracts

Samples: Revolving Credit Agreement (American Axle & Manufacturing Holdings Inc), Revolving Credit Agreement (American Axle & Manufacturing Holdings Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~ each 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. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with~~ subject to the ~~consent of~~ approval by the Borrower (which approval shall not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender~~ Issuing Bank and ~~each Letter of Credit Issuer~~in consultation with the Borrower, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Samples: Credit Agreement (St John Knits International Inc), Credit Agreement (Vestar Associates Corp Iii)

Appears in 2 contracts

Samples: Credit Agreement (Advance Auto Parts Inc), Credit Agreement (Advance Auto Parts Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any ~~Subsidiary~~ of its 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 ~~herein~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. 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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate of the Administrative Agent, as a Lender, has any Revolving Exposure, outstanding Advance Loan or unused Commitment and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Houston, Texas, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ 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 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 ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender 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 related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, extent to which it will continue as a ~~Lender~~Lender or assign or otherwise transfer its rights, interests and obligations hereunder.

Appears in 2 contracts

Samples: Credit Agreement (Solaris Oilfield Infrastructure, Inc.), Credit Agreement (Solaris Oilfield Infrastructure, Inc.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 Borrower or~~ any ~~Subsidiary~~ Credit 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 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 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 ~~12.1~~11.02), and (c) except as expressly set forth 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 ~~the Borrower or~~ any ~~of its 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 ~~12.1~~11.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 V or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Chicago, Illinois or New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 11.03 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Samples: Credit Agreement (Exco Resources Inc), Credit Agreement (Exco Resources Inc)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof,~~ 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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.2), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.2) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in ~~Article 6~~ Section 4 or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 Swingline Lender,~~ each ~~Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ To the ~~contrary the Joint Bookrunners~~extent required by any applicable law, the ~~Joint Lead Arrangers and~~ Administrative Agent may withhold from any interest payment to any Lender or the ~~Syndication Agents named on~~ Issuing Bank an amount equivalent to any applicable withholding tax. If the ~~cover page~~ Internal Revenue Service or any other governmental authority asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of ~~this Agreement shall~~ any Lender or the Issuing Bank because the appropriate form was not ~~have~~ delivered or was not properly executed or because such Lender or the Issuing Bank failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding tax ineffective or for any ~~duties~~ other reason, such Lender or ~~liabilities under this Agreement, except in its capacity, if any~~the Issuing Bank, as ~~a Lender~~applicable, shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.

Appears in 2 contracts

Samples: Credit Agreement (GNC Acquisition Holdings Inc.), Credit Agreement (General Nutrition International Inc)

The Administrative Agent. (a) Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (ai) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (bii) 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 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 ~~12.1~~9.02), and (ciii) except as expressly set forth 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 the Borrower or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. . (g) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. (h) The Administrative Agent shall be permitted from time to time to designate one of its Affiliates to perform the duties to be performed by the Administrative Agent hereunder with respect to Loans and Borrowings denominated in Foreign Currencies. ~~Notwithstanding anything herein~~ The provisions of this Article VIII shall apply to any such Affiliate mutatis mutandis. All provisions of this Article VIII relating to the ~~contrary~~ Administrative Agent shall be equally applicable to the ~~Joint Bookrunners~~Collateral Agent mutatis mutandis. Without limiting the foregoing, if any Collateral or any Subsidiary is sold in a transaction permitted hereunder (excluding sales to the Borrower or a Subsidiary thereof other than sales comprising part of a Permitted Securitization made to a Subsidiary which is an SPC), (a) such Collateral and the assets of such Subsidiary shall be sold free and clear of the Liens created by the Security Documents and (b) in the case of such a sale of a Subsidiary Guarantor, such Subsidiary Guarantor and its subsidiaries shall be released from the Subsidiary Guaranty and, in each case, the ~~Joint Lead Arrangers~~ Administrative Agent, the Collateral Agent and the ~~Syndication Agents named~~ UK Security Trustee shall be authorized to take any actions deemed appropriate in order to effect the foregoing. Each of the Administrative Agent, the Collateral Agent and the UK Security Trustee shall also be authorized, on behalf of the ~~cover page~~ Lenders, to enter into such amendments of ~~this Agreement shall~~ the Security Documents and to enter into such agreements (including intercreditor agreements but excluding any releases of Collateral not ~~have~~ otherwise authorized hereby) as, in either case, it deems necessary or appropriate in connection with a Permitted Securitization. Additionally, in connection with the granting of Liens of the type described in clauses (i), (j), (m) or (s) of Section 6.02 by the Borrower or any ~~duties~~ of its Subsidiaries, each of the Administrative Agent, the Collateral Agent and the UK Security Trustee is authorized to take any actions deemed appropriate by it in connection therewith (including, without limitation, the execution of appropriate lien releases or ~~liabilities under this Agreement~~lien subordination agreements in favor of the holder or holders of such Liens, ~~except~~ in ~~its capacity, if any, as a Lender~~either case solely with respect to the item or items of equipment or other assets subject to such Liens.

Appears in 2 contracts

Samples: Credit Agreement (Manitowoc Co Inc), Credit Agreement (Manitowoc Co Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 Borrower or any Restricted 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~~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 ~~hereby~~ 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 under the circumstances as provided in Section ~~12.1~~9.02), ~~and~~ and, (c) except as expressly set forth ~~herein~~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 Loan Party or any ~~of its Subsidiaries~~ Restricted 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful misconduct as determined by a final nonappealable judgment of a court of competent ~~jurisdiction by a final and non-appealable judgment~~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 by the Borrower or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vvi) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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. Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Collateral Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duly or obligation to take any further action under any Collateral Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article, Section 2.17(d) and Section 9.03, as well as any exculpatory, reimbursement and 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~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ 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 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 ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the U.S. 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, 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. 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. Notwithstanding anything herein to the ~~contrary~~ contrary, none of the ~~Joint Bookrunners~~Syndication Agent, ~~the Joint~~ Bookrunners or Lead Arrangers ~~and the Syndication Agents named~~ listed on the cover page of hereof shall have any powers, duties or responsibilities under this Agreement ~~shall not have~~ or any ~~duties or liabilities under this Agreement~~of the other Loan Documents, except in its capacity, ~~if any~~as applicable, as the Administrative Agent, a ~~Lender~~Lender or an Issuing Bank hereunder.

Appears in 2 contracts

Samples: Credit Agreement (Groupon, Inc.), Credit Agreement (Groupon, Inc.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent (or Issuing Bank) 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 (or Issuing Bank) hereunder, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent (or Issuing Bank) hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 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 ~~12.1~~9.02), and (c) except as expressly set forth 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 the Borrower or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ None of the ~~contrary the Joint Bookrunners~~Co-Syndication Agents, ~~the Joint~~ Co-Documentation Agents, Managing Agents, Sole Bookrunner or Sole Lead ~~Arrangers and the Syndication Agents named~~ Arranger identified on the cover page of this Agreement shall ~~not~~ have any ~~duties~~ right, power, obligation, liability, responsibility or ~~liabilities~~ duty under this ~~Agreement~~Agreement in any such capacity. Without limiting the foregoing, ~~except~~ none of the Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Person so identified (whether or not any such Person is also a Lender hereunder) in ~~its capacity, if any, as a Lender~~deciding to enter into this Agreement or in taking or not taking action hereunder.

Appears in 2 contracts

Samples: Credit Agreement (Ultra Petroleum Corp), Credit Agreement (Ultra Petroleum Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. ~~The bank~~ Any 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 Borrower or any 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. 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 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 ~~12.1~~9.02), and (c) except as expressly set forth 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 the Borrower or any ~~of its Subsidiaries~~ Subsidiary 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ under any Loan Document or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral or (vvi) the satisfaction of any condition set forth in Article 6 IV or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor, which successor Administrative Agent shall be subject to written approval by the Borrower at all times other than during the continuance of an Event of Default (which approval shall not be unreasonably withheld, delayed or conditioned). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ 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 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 ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender 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~~the Loan Documents, any related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the ~~contrary the Joint Bookrunners~~extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. In its capacity as Administrative Agent, the ~~Joint Lead Arrangers~~ 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 ~~Syndication Agents named~~ 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 ~~cover page~~ Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of ~~this Agreement~~ the Administrative Agent on behalf of the Secured Parties. The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral in accordance with Section 9.02(d) or pursuant to and in accordance with Section 9.18. Upon any sale or transfer of assets constituting Collateral that 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 Secured Parties herein or pursuant hereto upon the Collateral that was sold or transferred; provided, that (a) the Administrative Agent shall not ~~have~~ be required to execute any ~~duties~~ such document on terms which, in the Administrative Agent’s reasonable opinion, would expose the Administrative Agent to liability or ~~liabilities under this Agreement~~create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, ~~except~~ and (b) such release shall not in ~~its capacity~~any manner discharge, ~~if any~~affect or impair the Secured Obligations or any Liens upon (or obligations of the Borrower or any Subsidiary in respect of) all interests retained by the Borrower or any Subsidiary, ~~as a Lender~~including the proceeds of the sale, all of which shall continue to constitute part of the Collateral.

Appears in 2 contracts

Samples: Credit Agreement (Marketaxess Holdings Inc), Credit Agreement (Marketaxess Holdings Inc)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender and each Letter of Credit Issuer~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and on behalf of the Holders of Obligations and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, by the Disbursement Agreement and by any other Loan Document, together with such actions and powers as are reasonably incidental thereto, with the Administrative Agent being entitled to make all decisions in its sole discretion unless, by the terms hereof or thereof, such decision requires the approval of all or any of the Lenders, or the Administrative Agent, pursuant to the following, seeks authorization from all or any of the Lenders, as applicable. 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 Holdings the Borrower or any 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, in the Disbursement Agreement 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 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 ~~12.1~~9.02), ~~and~~ and (c) except as expressly set forth 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 Holdings, the ~~Borrower~~ Borrower, any Subsidiary or any ~~of its Subsidiaries~~ Credit Party 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 under this Agreement, the Disbursement Agreement or any other Loan Document 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire ~~into~~ into: (i) any statement, warranty or representation made in or in connection with this Agreement, , (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, , (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document~~, or~~ , (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent, or (vi) the perfection or priority of any of the Liens on any of the Collateral. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Holdings or the 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. 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 Swingline Lender, each Letter of Credit Issuer~~ Holdings and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, ~~the Swingline Lender and each Letter of Credit Issuer,~~ appoint a successor Administrative ~~Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank~~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 and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by Holdings or the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ Except with respect to the ~~contrary the Joint Bookrunners~~exercise of setoff rights of any Lender in accordance with Section 9.08, the ~~Joint Lead Arrangers~~ 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 Holdings or 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 ~~Syndication Agents named~~ 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 ~~cover page~~ Lenders to (i) 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 ~~shall not have any duties or liabilities~~ and (ii) exercise such other rights and remedies granted to the Lenders under ~~this Agreement, except in~~ the Loan Documents. In its capacity, the Administrative Agent is a “representative” of the Holders of 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 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 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 Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Holders of 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 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) upon termination of the Commitments and payment and satisfaction of all of the Obligations (other than contingent indemnity obligations and Obligations in respect of Swap Agreements) at any time arising under or in respect of this Agreement or the Loan Documents or the transactions contemplated hereby or thereby; (ii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or (iii) if ~~any~~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 ~~a Lender~~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 Obligations herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent 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, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of Holdings the Borrower or any Subsidiary in respect of) all interests retained by Holdings, the Borrower or any Subsidiary, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. The Lenders authorize the Administrative Agent to enter into and perform under the Disbursement Agreement on behalf of the Lenders, including, without limitation, taking all actions required by or permitted to be taken by the Administrative Agent on behalf of the Lenders thereunder. Each Lender agrees to be bound by the terms of the Disbursement Agreement.

Appears in 2 contracts

Samples: Credit Agreement, Credit Agreement (Florida Gaming Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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~~ any Borrower or any ~~Subsidiary~~ of their Subsidiaries or any of their other ~~Affiliate thereof~~ Affiliates 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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~~ any Borrower or any of ~~its~~ 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the immediate officers of the Administrative Agent responsible for this Agreement by ~~the~~ a Borrower or a ~~Lender~~Lender and is called a "notice of default", 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ 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 Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate, as a Lender, has any Revolving Exposure or unused Revolving Commitment and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the ~~Borrower~~Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right~~right to appoint a successor, with the prior written consent of the ~~Borrower~~ Borrowers (~~not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if~~ unless an Event of Default ~~has~~ shall have occurred ~~and~~ which is continuing, in which event the Borrowers' consent shall not be required)~~, to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York City, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Samples: Credit Agreement (Smith International Inc), Credit Agreement (Smith International Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of subordination agreements in respect of Subordinated Indebtedness (if any) and the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. 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, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ None of the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacityLenders, 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 hereby 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. 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.

Appears in 2 contracts

Samples: Credit Agreement (Zebra Technologies Corp), Credit Agreement (Zebra Technologies Corp/De)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the 134 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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower or the Mexico 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. 135 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~~ each 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. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (such consent not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent ~~which~~ that shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be he discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ The provisions of this Article shall apply to the ~~contrary~~ Collateral Agent as though named herein as the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a LenderAdministrative Agent.

Appears in 1 contract

Samples: Credit Agreement (Huntsman Packaging of Canada LLC)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 Holdings, the Borrower or any of ~~its~~ 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (ia) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (iib) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (~~iii~~c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (ivd) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any 105 Loan Document or any other agreement, instrument or ~~document,~~ document or (ve) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~ each 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. Subject to the appointment and acceptance of a successor the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (such consent not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent ~~which~~ that shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, 106 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Credit Agreement (Donjoy LLC)

The Administrative Agent. (a) Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~hereof and the other 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 may accept deposits from, lend money to and generally engage in any kind of business with the Parent Entity, any Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder~~. The~~ . (c) To the extent required by any applicable laws, the Administrative Agent ~~shall not have~~ may withhold from any ~~duties or obligations except those expressly set forth herein~~payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the ~~generality~~ provisions of Section 2.16, each Lender shall indemnify and hold harmless the Administrative Agent against, within 10 days after written demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent as a result of the ~~foregoing~~failure of the Administrative Agent to properly withhold any Tax from amounts paid to or for the account of such Lender for any reason (including, ~~(a)~~ without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of, withholding Tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by 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)~~ conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent ~~shall not have~~ to set off and apply any ~~duty~~ and all amounts at any time owing to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated 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~~ Lender under the circumstances as provided in Section 12.1), and (c) except as expressly set forth 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 the Borrower or any of 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 12.1) or in the absence of its own gross negligence or willful 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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other ~~agreement, instrument or document, or~~ Loan Document against any amount due the Administrative Agent under this clause (vc). The agreements in this clause (c) shall survive the ~~satisfaction~~ resignation and/or replacement of ~~any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to~~ the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations. The ~~Administrative Agent shall be entitled to rely upon~~term “Lender” shall, ~~and shall not incur any liability~~ for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel purposes of this clause (~~who may be counsel for the Borrower~~c), ~~independent accountants and other experts selected by it, and shall not be liable for~~ include 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 Issuing Bank 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. 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 Swingline Lender, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, the Swingline Lender and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 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 acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Restatement Agreement (Aptiv PLC)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 Borrower or~~ any ~~Subsidiary~~ Credit 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 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 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 ~~12.1~~11.02), and (c) except as expressly set forth 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 ~~the Borrower or~~ any ~~of its 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 ~~12.1~~11.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. None of the Syndication Agents, Documentation Agents or Managing Agents shall have any responsibility or liabilities as an agent hereunder. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Chicago, Illinois or New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 11.03 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Senior Revolving Credit Agreement (Exco Resources Inc)

Appears in 1 contract

Samples: Credit Agreement (John Bean Technologies CORP)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent (it being understood that reference in this Article VIII to the Administrative Agent shall be deemed to include the Collateral Agent) as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Parent Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~10.02), and (c) except as expressly set forth ~~herein~~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 Holdings, the Parent Borrower or any of 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 ~~12.1~~10.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 Holdings, the Parent Borrower, a Subsidiary Term Borrower, a Foreign Subsidiary Borrower or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Parent Borrower, a Subsidiary Term Borrower or any Foreign Subsidiary 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 109 sub-agent and to the Related Parties of ~~the~~ each 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the ~~Borrower~~Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers). Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of~~ Parent Borrower and, if applicable, the relevant Subsidiary Term Borrower ~~(not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred~~ and ~~is continuing)~~Foreign Subsidiary Borrower, to appoint a ~~successor~~successor from among the Lenders. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ The Lenders identified in this Agreement as the ~~contrary the Joint Bookrunners, the Joint Lead Arrangers~~ Syndication Agent and the ~~Syndication~~ Documentation Agents ~~named on the cover page of this Agreement~~ shall not have any ~~duties~~ right, power, obligation, liability, responsibility or ~~liabilities~~ duty under this ~~Agreement~~Agreement other than those applicable to all Lenders. Without limiting the foregoing, ~~except~~ none of the Syndication Agent or the Documentation Agents shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the Syndication Agent and the Documentation 110 Agents as it makes with respect to the Administrative Agent or any other Lender in ~~its capacity, if any, as a Lender~~this Article VIII.

Appears in 1 contract

Samples: Credit Agreement (Trimas Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. Any co-agents hereunder shall have no obligations or liabilities pursuant to their capacity as co- agents. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~ each 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. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Credit Agreement (Hanger Orthopedic Group Inc)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. ~~The bank~~ Any 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 ~~Borrower~~ Company or any 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. 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 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 ~~12.1~~9.02), and (c) except as expressly set forth 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 the ~~Borrower~~ Company or any ~~of its Subsidiaries~~ Subsidiary 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 Swingline Lender, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, the Swingline Lender and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 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 acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.The

Appears in 1 contract

Samples: Credit Agreement (Altra Industrial Motion Corp.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 Borrower or~~ any ~~Subsidiary~~ Credit 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 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 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 ~~12.1~~11.02), and (c) except as expressly set forth 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 ~~the Borrower or~~ any ~~of its 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 ~~12.1~~11.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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~~ a Borrower or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. None of the Co-Syndication Agents, the Documentation Agent nor the Arranger, in each case, in its respective capacity as such, shall have any responsibilities or duties, or incur any liability, under this Agreement or the other Loan Documents. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~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 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the ~~Borrower~~Borrower Representative. Upon any such resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Borrowers (which consent shall not to be unreasonably ~~withheld~~withheld or delayed), to appoint a successor; provided that no ~~such~~ consent of the ~~Borrower~~ Borrowers shall be required if ~~an Event of~~ any Default has occurred and is continuing~~), to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Chicago, Illinois, New York, New York, Dallas, Texas or ~~an Affiliate of any such bank~~Houston, Texas. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 11.03 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Credit Agreement (Antero Resources Finance Corp)

Appears in 1 contract

Samples: Credit Agreement (Applied Materials Inc /De)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~ each 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. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with~~ subject to the ~~consent of~~ approval by the Borrower (which approval shall not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender~~ Issuing Bank and ~~each Letter of Credit Issuer~~in consultation with the Borrower, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Credit Agreement (St John Knits International Inc)

The Administrative Agent. (a) Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (ai) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (bii) 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 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 ~~12.1~~9.02), and (ciii) except as expressly set forth 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 the Borrower or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default (other than a Default or Event of Default under clause (a) or (b) of Article VII in respect of any amount payable to the Administrative Agent) unless and until written notice thereof is given to the Administrative Agent by the Borrower or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the Table of Contents covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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. . (g) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Table of Contents Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Credit Agreement (Perot Systems Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~ subagents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-agent~~ subagent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~sub-agent~~ subagent and to the Related Parties of the Administrative Agent and any such ~~sub-agent~~subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the ~~consent~~ prior approval of the Borrower (which shall not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York and a minimum capital surplus of $100 million, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-agents~~ subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Credit Agreement (Gartner Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 Holdings, the Borrower or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 Holdings, the Borrower or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~ each 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. Subject to the appointment and acceptance of a successor the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with ~~the consent of~~ the Borrower (~~not to be unreasonably withheld; provided~~ except that no ~~such consent of the Borrower shall be~~ consultation is required if during an Event of ~~Default has occurred and is continuing~~Default), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ The provisions of this Article applicable to the ~~contrary~~ Administrative Agent also shall apply to the ~~Joint Bookrunners~~Collateral Agent, mutatis mutandis. The parties hereto acknowledge and agree that neither of the ~~Joint Lead Arrangers and the Syndication~~ Documentation Agents ~~named on the cover page of this Agreement shall not have~~ has any ~~duties~~ right, duty or ~~liabilities~~ liability under ~~this Agreement, except~~ any Loan Document in its ~~capacity, if any,~~ capacity as ~~a Lender~~Documentation Agent.

Appears in 1 contract

Samples: Credit Agreement (Advance Auto Parts Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (which consent shall not to be unreasonably withheld~~; provided that no such consent of the Borrower~~ , and shall not be required ~~if an~~ so long as any Event of Default set forth in clause (i) or (j) of Section 7.01 has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers~~ Each party hereto agrees and acknowledges that the Syndication Agents ~~named on~~ and the ~~cover page of this Agreement shall~~ Arrangers do not have any duties or ~~liabilities under this Agreement~~responsibilities in their capacities as Syndication Agents and Arrangers, ~~except~~ respectively, hereunder and shall not have, or become subject to, any liability hereunder in ~~its capacity, if any, as a Lender~~such capacities.

Appears in 1 contract

Samples: Credit Agreement (Tricon Global Restaurants Inc)

Appears in 1 contract

Samples: Credit Agreement (Oakley Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline~~ Issuing Lender ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and on behalf of the Holders of Obligations and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 Borrower or any 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. 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 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 ~~12.1~~9.02), ~~and~~ and (c) except as expressly set forth 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 the Borrower or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire ~~into~~ into (i) any statement, warranty or representation made in or in connection with this Agreement, , (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, , (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document~~, or~~ , (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent, or (vi) the perfection or priority of any of the Liens on any of the Collateral. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Lender and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Lender, appoint a successor Administrative ~~Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank~~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 and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ Except with respect to the ~~contrary~~ exercise of setoff rights of any Lender, including the ~~Joint Bookrunners~~Issuing Lenders, in accordance with Section 9.08, the ~~Joint Lead Arrangers~~ 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, including the Issuing Lenders, are not partners or co-venturers, and no Lender shall be liable for the ~~Syndication Agents named~~ 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 ~~cover page~~ Lenders to enforce the payment of the principal of and interest on any Loan or any Letter of Credit 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 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 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 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 Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Holders of 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 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) upon termination of the Commitments and payment and satisfaction of all of the Obligations (other than contingent indemnity obligations and Obligations in respect of Swap Agreements) at any time arising under or in respect of this Agreement or the Loan Documents or the transactions contemplated hereby or thereby; (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. 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 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 Obligations herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent shall not ~~have~~ be required to execute any ~~duties~~ such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or ~~liabilities under this Agreement~~create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, ~~except~~ and (ii) such release shall not in ~~its capacity~~any manner discharge, ~~if any~~affect or impair the Obligations or any Liens upon (or obligations of the Borrower or any Subsidiary in respect of) all interests retained by the Borrower or any Subsidiary, ~~as a Lender~~including the proceeds of the sale, all of which shall continue to constitute part of the Collateral.

Appears in 1 contract

Samples: Credit Agreement (Atari Inc)

Appears in 1 contract

Samples: Credit Agreement (J C Penney Co Inc)

The Administrative Agent. (a) Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent and the Co-Agent as its agent and authorizes the Administrative Agent and the Co-Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent and the Co-Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto~~. The~~ . (b) Any bank serving as the Administrative Agent or as the Co-Agent hereunder shall have the same rights and powers in its capacity as a Lender or Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent or the Co-Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent or the Co-Agent hereunder. . (c) The Administrative Agent and the Co-Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent and the Co-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 and the Co-Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing ~~as directed~~ by the 58 64 Issuing Bank or by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent and the Co-Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Borrowers or any of ~~its~~ the Subsidiaries that is communicated to or obtained by ~~the~~ any bank serving as Administrative Agent or the Co-Agent or any of its respective Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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~~ a Borrower or a 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~~Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent and the Co-Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~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. . (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 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the ~~Borrower~~Borrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrowers, to appoint a ~~successor~~successor to the Administrative Agent. If no successor shall have been so appointed by the Required Lenders and 59 65 shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ among the ~~Borrower~~ Borrowers and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 Co-Agent may resign at any time by notifying the Administrative Agent, the Lenders, the Issuing Bank and the Borrowers. (g) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 the Co-Agent or any other Lender or the Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or the Co-Agent or any other Lender or the Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Credit Agreement (Volt Information Sciences Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any ~~Subsidiary~~ of its 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 ~~herein~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. 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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate of the Administrative Agent, as a Lender, has any Revolving Exposure or unused Commitment and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Houston, Texas, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Credit Agreement (Orion Marine Group Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 Holdings, the Borrower or any of ~~its~~ 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 Holdings, the Borrower or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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 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~~ each 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent ~~which~~ that shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Amendment and Restatement Agreement (On Semiconductor Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as ~~its~~ administrative agent and collateral agent under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 of America, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. The ~~bank~~ Lenders hereby authorize the Administrative Agent to enter into any Equal Priority Intercreditor Agreement or Junior Lien Intercreditor Agreement in the event that any such Equal Priority Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable, is required to be executed and delivered pursuant to this Agreement and each Lender hereby agrees, upon execution and delivery of such Equal Priority Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable, to be bound by and take no actions contrary to the provisions of such Equal Priority Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable. The Lenders hereby authorize the Administrative Agent to negotiate the terms of any Security Document. The Person 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~~ 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 Borrower or any 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 ~~herein~~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 ~~hereby~~ 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 12.1~~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 ~~herein~~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~~ Borrower, any Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the 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 12.1~~the Loan Documents) or in the absence of its own gross negligence or ~~willful misconduct~~ 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~~ Borrower, a Lender or ~~a Lender~~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 ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ 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 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 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 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~~ from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the ~~right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing),~~ right to appoint a successor, which successor, so long as no Event of Default shall have occurred and be continuing, shall be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Lenders and approved by the Borrower (to the extent required) 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~~may (with the consent of the Borrower, such consent not to be unreasonably withheld or delayed), on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank~~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 and duties of the retiring 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 Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by the Borrower and such successor. ~~After~~ Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation ~~hereunder~~from its capacity as such, the provisions of this Article and Section ~~12.5~~ 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, 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~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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~~ Agent, any Arranger or any other Lender 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 and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Arranger or any other Lender 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 the Restatement Agreement on the Restatement Effective Date, or delivering its signature page to an Assignment and Assumption, an Incremental Facility Agreement or a Refinancing Facility Agreement pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Restatement Effective Date or the Restatement Effective Date. No Secured Party shall have any right individually to realize upon any of the Collateral or 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 Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) 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 Loan Document Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute 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 any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Hedging 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. Notwithstanding anything herein to the ~~contrary the Joint Bookrunners~~contrary, ~~the Joint Lead Arrangers and the Syndication Agents~~ neither no Person named on the cover page of this Agreement as Joint Lead Arranger, Joint Bookrunner, Co-Syndication Agent or Co-Documentation Agent shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder. Except as set forth in the sixth paragraph of this Article, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and, except as set forth in the sixth paragraph of this Article, none of the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions.

Appears in 1 contract

Samples: Credit Agreement (Costar Group Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 ~~Borrower~~ Borrower, the other Loan Parties or any ~~Subsidiary~~ of their 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 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 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 ~~12.1~~9.02), and (c) except as expressly set forth 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 the Borrower ~~or any of its Subsidiaries~~ Group Entities 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the written consent of the Borrower (not to be unreasonably withheld~~; provided that~~ , conditioned or delayed) so long as no ~~such consent of the Borrower shall be required if an~~ Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and, to the extent required, consented to by the Borrower, and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.~~ After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ 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 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 ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender 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 related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, extent to which it will continue as a ~~Lender~~lender or assign or otherwise transfer its rights, interests and obligations hereunder.

Appears in 1 contract

Samples: Credit Agreement (American Realty Capital Global Trust, Inc.)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender~~ Lenders and each Letter of Credit Issuer hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 Borrower or any 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. 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 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 12.1), 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 the terms of this Agreement or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Bankruptcy Code or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Bankruptcy Code; and (c) except as expressly set forth 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 the Borrower or any of 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 12.1) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 Swingline Lender,~~ each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders, the Swingline Lender~~ Lenders and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. 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) then such removal shall nonetheless become effective in accordance with such notice. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 12.5(a) 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint ~~Bookrunners~~Book runners, the Joint Lead Arrangers and the Syndication ~~Agents~~ Agent named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Revolving Credit Agreement (ITC Holdings Corp.)

The Administrative Agent. Each of the ~~Lenders~~Lenders and the Issuing Bank hereby [***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, ~~the Swingline Lender and each Letter of Credit Issuer hereby~~ MARKED BY BRACKETS AND ASTERISKS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED INFORMATION. irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 Borrower or~~ any ~~Subsidiary~~ Loan Party, any of their 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 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 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 ~~12.1~~9.02), and (c) except as expressly set forth 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 ~~the Borrower~~ any Loan Party or any of ~~its~~ 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, any other Loan Document, or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~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, including, without limitation with such titles as “Bookrunner,” “Arranger” and “Syndication 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 [***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS AND ASTERISKS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED INFORMATION. respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Notwithstanding anything herein to the contrary, none of the “Bookrunners,” “Arrangers” or “Syndication Agent” listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the Issuing Bank 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld~~; provided that~~ ) so long as no ~~such consent of the Borrower shall be required if an~~ Event of Default ~~has occurred and is continuing)~~exists, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ 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 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 ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender 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 related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, extent to which it will continue as a ~~Lender~~Lender or assign or otherwise transfer its rights, interests and obligations hereunder.

Appears in 1 contract

Samples: Credit Agreement (Dexcom Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 Holdings, the Borrower or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 Holdings, the Borrower or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~ each 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. Subject to the appointment and acceptance of a successor the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ The provisions of this Article applicable to the ~~contrary~~ Administrative Agent also shall apply to the ~~Joint Bookrunners~~Collateral Agent, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.mutatis mutandis. ------- --------

Appears in 1 contract

Samples: Credit Agreement (Laralev Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto, each of which may be exercised by KeyBank in its capacity as Collateral Agent to the extent an Intercreditor Agreement shall be executed. In the event of conflicting instructions or notices given to the Borrower by the Administrative Agent and any Lender, the Borrower is hereby directed and shall rely conclusively on the instruction or notice given by the Administrative 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 ~~Borrower~~ Borrower, Parent or any 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. 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 that the Administrative Agent is required to exercise in writing ~~as directed~~ by the ~~Required~~ Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth 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 ~~the Borrower or~~ any ~~of its Subsidiaries~~ Credit Party that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity, with the exception of specific notices given to it in its capacity as Administrative Agent hereunder. 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~~ Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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~~ Borrower, the Issuing Bank, or a ~~Lender~~Lender or the Administrative Agent otherwise has actual knowledge of such Default, 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere 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 Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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 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 ~~Swingline Lender~~Issuing Bank, ~~each Letter of Credit Issuer~~ and the Borrower, and may be removed by the Majority Lenders in the event of the Administrative Agent’s gross negligence or willful misconduct. Any such resignation or removal may at the Administrative Agent’s option also constitute the Administrative Agent’s resignation as Issuing Bank. Upon any such ~~resignation~~resignation or removal, the ~~Required~~ Majority Lenders shall have the right, with the ~~consent~~ approval of ~~the~~ Borrower (~~not to be unreasonably withheld;~~ provided ~~that~~ no ~~such consent of the Borrower shall be required if an Event of~~ Default has occurred and is continuing), which approval shall not be unreasonably withheld, to appoint a ~~successor~~successor Administrative Agent and, if applicable, Issuing Bank (subject to the provisions of Section 2.05(i)). If no successor shall have been so appointed by the ~~Required~~ Majority Lenders and shall have accepted such appointment within 30 thirty (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 ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent and, if applicable, Issuing Bank, which shall be a Lender, or a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent and, if applicable, Issuing Bank, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent~~Agent and, if applicable, Issuing Bank, and the retiring Administrative Agent and, if applicable, Issuing Bank, shall be discharged from its duties and obligations hereunder. The fees payable by the 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 Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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~~Agent and Issuing Bank. If the resigning or removed Administrative Agent shall also resign as the Issuing Bank, such successor Administrative Agent shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or shall make other arrangements satisfactory to the current Issuing Bank, in either case, to assume effectively the obligations of the current Administrative Agent with respect to such Letters of Credit. The Administrative Agent shall cooperate with any successor Administrative Agent in fulfilling its duties hereunder. Each Lender and the Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 or the Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or the Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Credit Agreement (SmartStop Self Storage REIT, Inc.)

Appears in 1 contract

Samples: Multi Year Credit Agreement (Smithfield Foods Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any ~~Subsidiary~~ of its 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 ~~herein~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. 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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate of the Administrative Agent, as a Lender, has any Revolving Exposure, outstanding Term Loan or unused Commitment and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Houston, Texas, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.ARTICLE XVII

Appears in 1 contract

Samples: Credit Agreement (Orion Marine Group Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and on behalf of the Holders of Secured Obligations and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 Borrower or any 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. 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 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 ~~12.1~~9.02), and (c) except as expressly set forth 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 the Borrower or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent~~Agent or (vi) the perfection or priority of any of the Liens on any of the Collateral. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~ subagents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-agent~~ subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~sub-agent~~ subagent and to the Related Parties of the Administrative Agent and any such ~~sub-agent~~subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (such consent not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent which~~ Agent; provided, that if an Event of Default has occurred and is continuing, no consent of the Borrower shall be ~~a bank with an office in the United States, or an Affiliate of any such bank~~required. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ None of the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacityLenders, if any, identified in this Agreement as a Co-Syndication Agent or a Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their capacity as Co-Syndication Agents or Co-Documentation Agents 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, including the Issuing Banks, 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 Credit Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Credit Documents, with the consent of the Administrative Agent. The Lenders, including the Issuing Banks, 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 or any Letter of Credit 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 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 Credit 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) upon termination of the Commitments and payment and satisfaction of all of the Obligations (other than contingent indemnity obligations and Obligations in respect of Hedging Agreements) at any time arising under or in respect of this Agreement or the Credit Documents or the transactions contemplated hereby or thereby; (ii) as permitted by, but only in accordance with, the terms of the applicable Credit 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 Credit Document, 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 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, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of the Borrower or any 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 constitute part of the Collateral. The Lenders and the Borrower irrevocably authorize the Administrative Agent, at its option and in its discretion, in the event that, at any time, the Administrative Agent determines that it does not have a perfected Lien on (i) such fee-owned real properties of the Credit Parties as constitute at least seventy-five percent (75%) of the aggregate market value of all fee-owned real properties of the Credit Parties, and/or (ii) such motor vehicles of the Credit Parties as constitute at least seventy-five percent (75%) of the aggregate market value of motor vehicles of the Credit Parties, to obtain perfected Liens on such unencumbered fee-owned real properties and/or unencumbered motor vehicles as the Administrative Agent deems necessary to reach the seventy-five percent (75%) aggregate market value threshold. The Borrower shall provide the Administrative Agent with all information reasonably requested by the Administrative Agent from time to time related to assets owned by the Credit Parties, shall cooperate fully with the Administrative Agent with respect to the performance of due diligence and the execution of documents necessary to facilitate such Lien perfection and shall pay all reasonable costs and expenses incurred by the Administrative Agent and its counsel in connection therewith.

Appears in 1 contract

Samples: Credit Agreement (Inergy L P)

Appears in 1 contract

Samples: Credit Agreement (Pathmark Stores Inc)

Appears in 1 contract

Samples: Credit Facility Agreement (Itt Industries Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 Borrower or any 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~~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 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 ~~12.1~~10.02), and (c) except as expressly set forth ~~herein~~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 the Borrower or any of 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 ~~12.1~~10.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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 of 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. ~~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 give notice of its resignation by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~resignation~~resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent, provided that in no event shall any such successor Administrative Agent ~~which shall~~ be a ~~bank~~ Defaulting Lender. Whether or not a successor has been appointed, such resignation shall become effective in accordance with ~~an office in~~ such notice on the ~~United States, or an Affiliate of any such bank~~Resignation 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 and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such ~~successor~~successor (or such lesser amount as the Borrower and such successor may agree). After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ 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 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 ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender 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 related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the ~~contrary~~ extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. Each Lender irrevocably authorizes the ~~Joint Bookrunners~~Administrative Agent, at its option and in its discretion, to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents. Upon request by the Administrative Agent at any time, the ~~Joint Lead Arrangers and~~ Required Lenders will confirm in writing the ~~Syndication Agents named on~~ Administrative Agent’s authority to release any Guarantor from its obligations under the ~~cover page of~~ Guaranty pursuant to this ~~Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender~~Article IX.

Appears in 1 contract

Samples: Credit Agreement (Stewart Information Services Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent (it being understood that reference in this Article VIII to the Administrative Agent shall be deemed to include the Collateral Agent) as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Parent Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~10.02), and (c) except as expressly set forth ~~herein~~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 Holdings, the Parent Borrower or any of 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 ~~12.1~~10.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 Holdings, the Parent Borrower, a Subsidiary Term Borrower, a Foreign Subsidiary Borrower or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Parent Borrower, a Subsidiary Term Borrower or any Foreign Subsidiary 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~~ each 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the ~~Borrower~~Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers). Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of~~ Parent Borrower and, if applicable, the relevant Subsidiary Term Borrower ~~(not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred~~ and ~~is continuing)~~Foreign Subsidiary Borrower, to appoint a ~~successor~~successor from among the Lenders. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ The Lenders identified in this Agreement as the ~~contrary the Joint Bookrunners, the Joint Lead Arrangers~~ Syndication Agent and the ~~Syndication~~ Documentation Agents ~~named on the cover page of this Agreement~~ shall not have any ~~duties~~ right, power, obligation, liability, responsibility or ~~liabilities~~ duty under this ~~Agreement~~Agreement other than those applicable to all Lenders. Without limiting the foregoing, ~~except~~ none of the Syndication Agent or the Documentation Agents shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the Syndication Agent and the Documentation Agents as it makes with respect to the Administrative Agent or any other Lender in ~~its capacity, if any, as a Lender~~this Article VIII.

Appears in 1 contract

Samples: Credit Agreement (Trimas Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline~~ Issuing Lender ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof,~~ hereof and under the other Credit 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 and generally engage in any kind of business with the ~~Borrower~~ Company or any 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. 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 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 12.1)~~Lenders, and (c) except as expressly set forth 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 the ~~Borrower~~ Company or any of ~~its~~ 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 12.1)~~ or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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~~ Company or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 V or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~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~~ 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, 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~~sub‑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 Swingline Lender, each Letter of Credit Issuer~~ Lenders and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent’s resignation shall nonetheless become effective and (1) the retiring Administrative Agent ~~may, on behalf~~ shall be discharged from its duties and obligations hereunder and (2) the Required Lenders shall perform the duties of the ~~Lenders~~Administrative Agent (and all payments and communications provided to be made by, to or through the ~~Swingline~~ Administrative Agent shall instead be made by or to each Lender ~~and each Letter of Credit Issuer,~~ directly) until such time as the Required Lenders appoint a successor ~~Administrative Agent which shall be a bank with an office~~ agent as provided for above in ~~the United States, or an Affiliate of any such bank~~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 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 ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Credit Agreement (Xl Group PLC)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 Borrower, the UK Borrower or any 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. 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 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 ~~12.1~~9.02), and (c) except as expressly set forth 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 the Borrower, the UK Borrower or any of ~~its~~ 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower or the UK 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, including without limitation X.X. Xxxxxx Europe Limited. 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower ~~(not to be unreasonably withheld; provided that~~ if no ~~such consent of the Borrower shall be required if an~~ Event of Default has occurred and is ~~continuing)~~continuing and otherwise in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ Each Lender authorizes the Administrative Agent, on behalf of and for the benefit of Lenders, to enter into and to be the agent for and representative of Lenders with respect to the Subsidiary Guaranty Agreements and the Pledge Agreement. Anything contained in any of the Loan Documents to the contrary ~~the Joint Bookrunners~~notwithstanding, the ~~Joint Lead Arrangers~~ Loan Parties, the Administrative Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral or to enforce the Subsidiary Guaranty Agreement, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent, on behalf of Lenders in accordance with the terms hereof and all powers, rights and remedies under the Pledge Agreement may be exercised solely by the Administrative Agent, and (ii) 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 or all of such Collateral at any such sale and the ~~Syndication Agents named on~~ Administrative Agent, as agent for and representative of the ~~cover page of this Agreement shall~~ Lenders (but not ~~have~~ any ~~duties~~ Lender or ~~liabilities under this Agreement, except~~ Lenders in its ~~capacity~~or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, ~~if any~~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 amounts due hereunder as a ~~Lender~~credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.

Appears in 1 contract

Samples: Credit Agreement (MPS Group Inc)

Appears in 1 contract

Samples: Credit Agreement (Murphy Oil Corp /De)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.2), and (c) except as expressly set forth ~~herein~~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 or any of 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 12.1) or in the absence of its own gross negligence or willful 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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 Swingline Lender, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, the Swingline Lender and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 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 acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.110

Appears in 1 contract

Samples: Credit Agreement (Huntsman Packaging Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. Credit Agreement 97 - 91 - 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 Borrower or any 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. Without limiting the generality of the ~~foregoing,~~ 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 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 12.1)~~Lenders, and (c) except as expressly set forth 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 the Borrower or any of 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 12.1)~~ or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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~~ Borrower, any Subsidiary Guarantor, or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent,~~ Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ None of the ~~contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named~~ Lenders designated on the cover page of this Agreement as a "Documentation Agent" or as a "Co-Agent" shall ~~not~~ have any ~~duties~~ rights or ~~liabilities under this Agreement, except in its capacity, if any, as a Lender~~obligations arising out of such designation.

Appears in 1 contract

Samples: Credit Agreement (Heftel Broadcasting Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as ~~its~~ administrative agent and collateral agent under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 of America, each of the Lenders and the Issuing Bank hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s or the Issuing Bank’s behalf. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or the Issuing Bank as any other Lender or institution serving as Issuing Bank 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 Borrower or any 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 or the Issuing Bank. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~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 ~~hereby~~ 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 12.1~~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 ~~herein~~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~~ Borrower, any Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the 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 12.1~~the Loan Documents) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct as (such absence to be presumed unless otherwise 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~~ Borrower, a Lender or ~~a Lender~~the 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 ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ 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 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 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 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~~ from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~resignation~~intent to resign, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative ~~Agent~~ Agent, which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by the Borrower and such successor. ~~After~~ Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Bank and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and the Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation ~~hereunder~~from its capacity as such, the provisions of this Article and Section ~~12.5~~ 9.03, as well as any exculpatory, reimbursement and 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~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and the Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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~~ Agent, the Arrangers or any other Lender or the 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 and the Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arrangers or any other Lender or the 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 any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured 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 Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) 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 Loan Document Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. In furtherance of the foregoing and not in limitation thereof, no Hedging 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 any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Hedging 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. Notwithstanding anything herein to the ~~contrary~~ contrary, neither the ~~Joint Bookrunners, the Joint Lead~~ Arrangers ~~and the Syndication Agents~~ nor any Person named on the cover page of this Agreement as a Syndication Agent or a Documentation Agent shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a Lender), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Bank, and none of the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions.

Appears in 1 contract

Samples: Credit Agreement (Shutterfly Inc)

The Administrative Agent. (a) Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (ai) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (bii) 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 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 ~~12.1~~9.02), and (ciii) except as expressly set forth 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 the Borrower or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default (other than a Default or Event of Default under clause (a) or (b) of Article VII in respect of any amount payable to the Administrative Agent) unless and until written notice thereof is given to the Administrative Agent by the Borrower or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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. . (g) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.this

Appears in 1 contract

Samples: Credit Agreement (Perot Systems Corp)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender~~ Lenders and ~~each Letter of Credit Issuer~~ an Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or~~ in any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 Swingline Lender, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, the Swingline Lender and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 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 acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.Loan Document,

Appears in 1 contract

Samples: Credit Agreement (Galyans Trading Co Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as ~~its~~ administrative agent and collateral agent under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 of America, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. The ~~bank~~ Lenders hereby authorize the Administrative Agent to enter into any Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement in the event that any such Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable, is required to be executed and delivered pursuant to this Agreement and each Lender hereby agrees, upon execution and delivery of such Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable, to be bound by and take no actions contrary to the provisions of such Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable. The Lenders hereby authorize the Administrative Agent to negotiate the terms of any Security Document. The Person 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~~ 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 Borrower or any 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 ~~herein~~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 ~~hereby~~ 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 12.1~~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 ~~herein~~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~~ Borrower, any Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the 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 12.1~~the Loan Documents) or in the absence of its own gross negligence or ~~willful misconduct~~ 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~~ Borrower, a Lender or ~~a Lender~~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 ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ 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 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 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 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~~ from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the ~~right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing),~~ right to appoint a successor, which successor, so long as no Event of Default shall have occurred and be continuing, shall be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Lenders and approved by the Borrower (to the extent required) 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~~may (with the consent of the Borrower, such consent not to be unreasonably withheld or delayed), on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank~~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 and duties of the retiring 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 Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by the Borrower and such successor. ~~After~~ Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation ~~hereunder~~from its capacity as such, the provisions of this Article and Section ~~12.5~~ 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, 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~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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~~ Agent, the Arranger or any other Lender 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 and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arranger or any other Lender 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 on the Closing Date, or delivering its signature page to an Assignment and Assumption, an Incremental Facility Agreement or a Refinancing Facility Agreement pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Closing Date or the Closing Date. No Secured Party shall have any right individually to realize upon any of the Collateral or 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 Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) 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 Loan Document Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute 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 any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Hedging 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. Notwithstanding anything herein to the ~~contrary the Joint Bookrunners~~contrary, ~~the Joint Lead Arrangers and the Syndication Agents~~ neither no Person named on the cover page of this Agreement as Joint Lead Arranger, Joint Bookrunner, Co-Syndication Agent or Co-Documentation Agent shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder.

Appears in 1 contract

Samples: Credit Agreement (Costar Group Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent both as administrative agent and collateral agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~hereof and the 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 ~~Borrower~~ Borrowers or ~~any Subsidiary~~ 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~~herein or in the 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 hereby or thereby that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders, the Required Revolving Lenders voting as a separate Class or the Required Term Lenders voting as a separate Class (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth 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 the ~~Borrower~~ Borrowers or any of ~~its~~ 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, the Required Revolving Lenders or the Required Term Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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~~ Borrowers or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral or (vvi) the satisfaction of any condition set forth in Article 6 IV or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~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 against any Credit Party 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the ~~Borrower~~Borrowers. Upon any such resignation, the Required Revolving Lenders voting as a separate Class and the Required Term Lenders voting as a separate Class shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrowers, to appoint a successor. If no successor shall have been so appointed by the Required Revolving Lenders and the Required Term Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a ~~bank with an office in the United States~~commercial bank, or an Affiliate of any such commercial bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this ~~Article~~ Article, Section 2.15(d) and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ Each Lender acknowledges the potential conflict of interest of each other Lender as a result of Lenders holding disproportionate interests in the Loans, and expressly consents to and waives any claim based upon such conflict of interest. Each Lender and Issuing Bank 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 ~~contrary~~ completeness or accuracy of any Report or any of the ~~Joint Bookrunners, the Joint Lead Arrangers~~ information contained therein or any inaccuracy or omission contained in or relating to a Report and ~~the Syndication Agents named on the cover page of this Agreement~~ (ii) shall not ~~have~~ be liable for any ~~duties~~ information contained in any Report; (c) the Reports are not comprehensive audits or ~~liabilities under~~ examinations, and that any Person performing any field examination will inspect only specific information regarding the Credit Parties and will rely significantly upon the Credit Parties’ books and records, as well as on representations of the Credit 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 Credit 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 parties hereto agree that the titles Revolving Joint Book Manager, Revolving Joint Lead Arranger, Term Facility Bookrunner, Syndication Agent and Documentation Agent are honorary and confer no duties upon such agents except ~~in its capacity, if any,~~ as a ~~Lender~~Lender hereunder, provided that the Revolving Joint Book Managers, Revolving Joint Lead Arrangers, Term Facility Bookrunner, Syndication Agent and Documentation Agent shall be entitled to the rights and benefits specifically provided for herein.

Appears in 1 contract

Samples: Credit Agreement (Usec Inc)

The Administrative Agent. (a) Each of the ~~Lenders, the Swingline Lender and each Letter of Credit Issuer~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. NAI-1534445371v11534445371v6 (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (ai) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (bii) 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 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 ~~12.1~~10.02), and (ciii) except as expressly set forth 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 the Borrower or any ~~of 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 ~~12.1~~10.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (iA) any statement, warranty or representation made in or in connection with this Agreement, (iiB) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (~~iii~~C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (ivD) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (vE) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the ~~Related Parties~~ Affiliates 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. . (f) Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent ~~may~~ xxx resign at any time by notifying the ~~Lenders, the Swingline Lender, each Letter of Credit Issuer~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower (not to be unreasonably withheld; provided that~~ Borrower, so long as no ~~such consent of the Borrower shall be required if an~~ Event of Default ~~has occurred and is continuing)~~exists, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, ~~the Swingline Lender and each Letter of Credit Issuer,~~ appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective ~~Related Parties~~ Affiliates in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. NAI-1534445371v11534445371v6 (g) Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and ~~letters of credit and~~ not ~~instruments~~ 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 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 ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender 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 related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, extent to which it will continue as a ~~Lender~~Lender or assign or otherwise transfer its rights, interests and obligations hereunder.

Appears in 1 contract

Samples: Term Loan Agreement (Cooper Companies, Inc.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be 151 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~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any 152 statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~ each 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (which consent shall not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation 153 hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Credit Agreement (Triton PCS Holdings Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Diamond Resorts Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 Borrower or~~ any ~~Subsidiary~~ Credit 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 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 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 ~~12.1~~11.02), and (c) except as expressly set forth 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 ~~the Borrower or~~ any ~~of its 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 ~~12.1~~11.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 V or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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. 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 15 Business Days prior written notice to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (which consent shall not to be unreasonably ~~withheld~~withheld or delayed), to appoint a successor; provided that no ~~such~~ consent of the Borrower shall be required if an any Event of Default has occurred and is continuing~~), to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Chicago, Illinois or New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 11.03 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Credit Agreement (Petroleum Development Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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~~ discre tionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of ~~its~~ 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (ia) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (iib) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (~~iii~~c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Xxxx- xxxx, (ivx) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or ~~document,~~ document or (ve) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~ each 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. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right,~~ right to appoint a successor with the consent of the Borrower (~~not to be unreasonably withheld; provided that~~ so long as no ~~such consent of the Borrower shall be required if an~~ Event of Default has occurred and is continuing), such consent not to ~~appoint a successor~~be unreasonably withheld. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent ~~which~~ that shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Credit Agreement (Endo Pharmaceuticals Holdings Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~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 Borrower or any 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~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 Holdings, the Borrower or any of 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 Holdings, the Borrower or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. 126 The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~ each 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. Subject to the appointment and acceptance of a successor the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ The provisions of this Article applicable to the ~~contrary~~ Administrative Agent also shall apply to the ~~Joint Bookrunners~~Collateral Agent, mutatis mutandis. The parties hereto acknowledge and agree that none of the ~~Joint Lead Arrangers and the Syndication~~ Co-Agents ~~named on the cover page of this Agreement shall not have~~ has any ~~duties~~ duty or ~~liabilities~~ liability under ~~this Agreement, except~~ any Loan Document in its ~~capacity, if any,~~ capacity as a ~~Lender~~Co-Agent.

Appears in 1 contract

Samples: Credit Agreement (Advance Stores Co Inc)

Appears in 1 contract

Samples: Loan Agreement (Fiserv Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ institution 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~~ institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 or any of its Subsidiaries that is communicated to or obtained by the ~~bank~~ institution 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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 or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the 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~~ each 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (which consent shall not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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. None of the Lenders identified on the facing page of this Agreement or elsewhere herein as an "Agent" or a "Co-Agent" shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 (including any Lender identified as an "Agent" or as a "Co-Agent") and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender (including any Lender identified as an "Agent" or as a "Co-Agent") and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead Arrangers and the Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Credit Agreement (Triton PCS Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Issuing Bank and the ~~Swingline Lender and each Letter of Credit Issuer~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, 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 Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. - 63 - Credit Agreement ---------------- The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 ~~hereby~~ 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 ~~12.1~~11.1), and (c) except as expressly set forth 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 the ~~Borrower~~ Borrower, any Subsidiary or any ~~of its Subsidiaries~~ Affiliate thereof 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 ~~12.1~~11.1) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~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~~ Borrower, the Issuing Bank or a 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~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~therein, (iv) the validity, enforceability, effectiveness or genuineness ~~of this Agreement~~ thereof or any other agreement, instrument or other document, or (v) the satisfaction of any condition set forth in ~~Article~~ Sections 5 or 6 or elsewhere 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 notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts reasonably 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 no such delegation shall serve as a release of the Administrative Agent or waiver by the Borrower of any rights hereunder. 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. 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 ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in - 64 - Credit Agreement ---------------- consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Issuing Bank and the Lenders~~, the Swingline Lender and each Letter of Credit Issuer~~, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this ~~Article~~ Section 10 and Section ~~12.5~~ 11.5 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~~ of the Issuing Bank and the Lenders acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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~~ Agent, the Issuing Bank or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each ~~Lender~~ of the Issuing Bank and the Lenders also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Issuing Bank or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon ~~this Agreement~~any Loan Document, any related agreement or any document furnished ~~hereunder or~~ thereunder. Notwithstanding anything herein to the ~~contrary~~ contrary, none of the ~~Joint Bookrunners~~Co-Lead Arrangers, the ~~Joint Lead Arrangers and~~ Arrangers, the Syndication Agent, the Documentation Agent or the Co-Agents ~~named on the cover page of this Agreement~~ shall ~~not~~ have any ~~duties~~ duty or ~~liabilities~~ obligation, as such, under this Agreement~~, except in its capacity, if any, as a Lender~~.

Appears in 1 contract

Samples: Credit Agreement (Insight Communications Co Inc)

Appears in 1 contract

Samples: Term Credit Agreement (Stepan Co)

Appears in 1 contract

Samples: Bridge Loan Agreement (Ion Geophysical Corp)

Common use of The Administrative Agent Clause in Contracts